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2018 DIGILAW 74 (JK)

Rinku Kumar v. State of J&K

2018-02-08

M.K.HANJURA

body2018
JUDGMENT : 1. The petitioners dispute the result of the investigation and the allegations levellled against them in the charge sheet on the grounds inter alia, that they got married to each other. Both of them had attained the age of majority at the time of this marriage. The petitioners proceed to state that since the marriage was an inter-religious one, it was resisted by the father of petitioner No. 2 and therefore, it was not safe for them to perform the rituals in the State of J&K as a consequence of which they performed the same at Gaziabad (U.P.) on 7.9.2015 where the petitioner No. 2 (bride) changed her faith into Hinduism and was named as Sonia Sharma. The copy of the marriage certificate the conversion certificate, it is stated, are attached to the petition as annexure-B. The petitioners also state that the marriage was registered in accordance with the statutory requirement of the State and the registration certificate was issued in favour of the parties in accordance with the Uttar Pradesh Marriage Registration (Rules) 1973 dated 7.9.2015, a copy whereof is attached to the petition as annexure-C. It is further stated that the marriage between the petitioners did not augur well with the father of the petitioner No. 2 and it was at his behest that a false and frivolous case bearing FIR No. 126/2015 for the commission of offences under section 366/109 RPC was registered on 06.9.2015 against the petitioner No. 1 at Police Station, Poonch. Pursuant to this FIR the police authorities of Police Station, Poonch visited Delhi for the investigation of the case and apprehended the petitioners on 16.09.2015. The local police alongwith the Delhi police produced the couple before the Duty Metropolitan Magistrate (Central District Delhi) for remand and the learned Magistrate after examining the FIR, the officer incharge from J&K and the officer from Delhi Police, granted 18 hours remand to the Police authorities to produce the couple before the local police. It is further contended that by order dated 16.9.2015, the learned Metropolitan Magistrate directed as under: “That I have also interacted with alleged victim. She has stated that she is a major and has married the accused with her own consent. It is further contended that by order dated 16.9.2015, the learned Metropolitan Magistrate directed as under: “That I have also interacted with alleged victim. She has stated that she is a major and has married the accused with her own consent. Even accused has stated that victim is age about 21 years and they have got married in Arya Samaj Mandir at Ghaziabad after her conversion to Hinduism and has been renamed as Sonia. He has stated that he has documentary proof recording the said facts. Both the accused as well as victim have also stated that they have apprehensions about their security. The claims and counter claims of police and victim/accused cannot be considered in a summary manner and needs detailed scrutiny by the concerned court in the given facts and circumstances the application seeking transit remand of accused is allowed and 18 hours time is given to produce the accused before the concerned court/local Duty Magistrate. Further, SHO PS Subzi Mandi is directed to provide adequate security cover to the victim and produce her before concerned court for further direction/security. At least one male and female officer shall accompany the victim till her production before the court. SI Kapil is directed to file the compliance before Ld CMM Central Delhi, Tis Hazari court within one month from today. SHO PS Subzi Mandi is directed to file the compliance report before Ld. CMM Central Delhi, Tis Hazari Court within one month week from today. 2. It is stated in the FIR that the brother of the petitioner No.1 alongwith his father and one Jai Dev forcibly barged into the house of the complainant and kidnapped the petitioner No. 2 named Farzana Kouser from this custody. It is further stated that the petitioner No. 2 Farzana Kouser alias Sonia Sharma fled away from the clutches of her parents who had confined her in their house, whereafter she filed a petition bearing No. 1440/2015 before this court in which the official respondents were directed to provide protection to the petitioners from harassment emanating allegedly at the hands of the private respondents 4 to 6. Apprehending harassment at the hands of her parents, the petitioner No. 2, Farzana Kouser alias Sonia Sharma went to Delhi and filed a writ petition bearing CRL No. 2319/2015 before the High Court of Delhi and the Hon’ble Court passed an order to the following affect: “the petitioner, who is a resident of Poonch (Jammu & Kashmir) has married one Rinku Kumar of her own free will after converting herself to Hindu Religion. She had come to contact with Rinku when she had joined the newly created Poonch University in the State of Jammu & Kashmir. The conversion of petitioner to another religion and her marriage to a Hindu boy was not accepted by her father, who lodged a case against Rinku Kumar and other vide FIR No. 126 of 2015 (P.S. Poonch) under sections 366 and 109 of Ranbir Penal Code. Pursuant to such and FIR, the J&K Police arrested the petitioner and her husband who were taken to Jammu and later only the husband of the petitioner was sent to custody. In the meantime, the petitioner was subjected to service cruelty at the hands of her own parents. She was made to marry somebody else (Respondent No. 11) under coercion, threat and pressure. Though the prayer in the writ petition are multi pronged but the counsel for the petitioner had limited his prayer and seeks direction to the SHO and Civil Lines Police Station to afford protection to the petitioner so that she may not be illegally arrested or forced by any person to go to the State of Jammu & Kashmir or enter into any matrimonial relation with respondent No. 11 and be not further subjected to any cruelty. Issue notice Ms. Richa Kapoor Additional Standing Counsel accepts notice. Status report be filed on or before the next date fixed. In the meantime, the petitioner shall be afforded protection by the SHO of the Civil Lines Police Station. SI Anand Singh from the same Police Station is in attendance in the Court. He has been asked to given his mobile telephone number to the petitioner, who is present in the court, so that in case of any necessity, she could contact the police personnels of Civil Lines Police Station. SI Anand Singh from the same Police Station is in attendance in the Court. He has been asked to given his mobile telephone number to the petitioner, who is present in the court, so that in case of any necessity, she could contact the police personnels of Civil Lines Police Station. It has been submitted on behalf of the petitioner that she is residing with the brother of her husband (Rinku Kumar) The SHO of the concerned Police Station would consider the desirability of placing a Beat Constable near the residence of the brother in law of the petitioner.” 3. On the basis of the above set of facts buttressed with the orders of the different courts, the petitioners in this petition implore for the grant of the following relief in their favour : i. Allow the present petition. ii. Quashing the FIR No. 126/2015 dated 06.09.2015 for offences under section 366/109 RPC registered with Police Station Poonch which culminated into charge-sheet/final report No. 104/2015 pending before the Principal District and Sessions Judge, Poonch. iii. Quashing the case No. 215/Sessions of 2015 dated of Institution 12.11.2015 pending before the Learned Principal District & Sessions Judge, Poonch under Section 376, 366 RPC pursuant to the FIR No. 126/2015 and all orders passed therein. iv. Any other order or direction which this Hon’ble Court deems fit may kindly be granted in favour of there petitioner. 4. During the pendency of the petition, this court vide order dated 26.7.2016 directed that the statement of the petitioners be recorded before the Chief Judicial Magistrate, Jammu who shall forward a copy of the same to this Court. 5. The Learned Chief Judicial Magistrate, Jammu recorded the statement of Farzana Kouser, alias Sonia Sharma on 26.7.2016 wherein she has reiterated that she entered into a marital tie with Rinku Kumar at Ghaziabad on 7.9.2015. This marriage was performed in a temple and thereafter in the Court. She forwarded the documents depicting this marriage to her parents by post. The police authorities took her to Poonch from Delhi where her parents married her with her cousin against her will and wish. Her parents told her to make a statement before the Court against Rinku Kumar which she vehemently refused. She was tortured by her uncle and parents after she was recovered from Delhi. She gave a bluff to her uncle. Her parents told her to make a statement before the Court against Rinku Kumar which she vehemently refused. She was tortured by her uncle and parents after she was recovered from Delhi. She gave a bluff to her uncle. She fled away from his dwelling house and reached Jammu. Thereafter she left for Delhi. She filed a petition in Delhi and the Court directed that she should be protected. She stayed at Delhi for a period of 6 months in a rented accommodation and the rent in lieu of the occupation of this accommodation was paid by the parents of petitioner No. 1 i.e. Rinku. She has been residing with Rinku as his wife and they are living a normal life. 6. In the status report, it is contended that the petitioner Rinku Sharma was arrested on 16.9.2015 and the petitioner No.2 Farzana Kousar alias Sonia Sharma was recovered from the premises of Tees Hazari Court Delhi. The deputed officer prepared the arrest memo on spot and intimated the legal heirs of the accused about his arrest. The deputed officer also obtained the transit remand from the Court of Delhi. On 17.9.2015, the accused and the recovered girl were produced before the authorities of Police Station, Poonch with the help of Delhi Police. On 18.9.2015 after the medical check up of the accused, he was produced before the Court at Poonch from where he was remanded to custody. The Medical check up of the victim namely, Farzana Kousar, was also got conducted at District Hospital Poonch and she was produced before the Court after completing the legal formalities. She was handed over to her father against proper receipt. During the course of the investigation of the case what come to the fore is that the accused is involved in the commission of offences under sections 376/366/109 RPC. A charge sheet for the commission of aforesaid offences was laid against the accused before the court of law on 12.11.2015 and the accused was lodged at District Jail Poonch. 7. Heard and considered. 8. From a bare perusal of the material on record, it reveals that the date of birth of the petitioner, named Rinku Sharma is 15.2.1987 and the date of birth of Farzana Kousar alias Sonia Sharma is 02.01.1994. The contention of the petitioners is that they entered into a marital tie on 7.9.2015. 7. Heard and considered. 8. From a bare perusal of the material on record, it reveals that the date of birth of the petitioner, named Rinku Sharma is 15.2.1987 and the date of birth of Farzana Kousar alias Sonia Sharma is 02.01.1994. The contention of the petitioners is that they entered into a marital tie on 7.9.2015. Both of them had attained the age of majority on the date of occurrence, meaning thereby it was the decision of two adults to enter into the wed lock. Where two adults agree to enter into a marital tie, nobody can interfere or harass the couple. The petitioner No. 2 might have been conscious of her welfare in entering into this wed lock. On the face of the statement of the petitioner No. 2 recorded by the court of learned Chief Juidicial Magistrate, Jammu buttressed with the orders passed by various courts, which are on record, the registration of FIR against the petitioners is highly unrealistic and unbelievable .The statement of Farzana Kousar alias Sonia Sharma clearly indicates that an incorrect and unbelievable story has been projected by the informant in the FIR. It appears to be false, frivolous and devoid of any merit. The FIR registered against the petitioner No. 1 and others on the scales of the statement of the petitioner No. 2 and the allied material appears to be a ploy devised to force and coerce her to run away from the marriage that she solemnized with the petitioner No. 1 An adult woman has an unfettered right to live a life of her choice. 9. Viewed in the above context, the FIR bearing No. 126/2015 dated 06.9.2015 registered against the petitioner No. 1 and others at Police Station, Poonch and all the proceedings emanating therefrom, can be perceived to be facetious and feather brained, as a consequence of which the FIR No. 126/2015 and the proceedings arising therefrom are quashed.