Back
2017 Supreme(All) 542
ALLAHABAD HIGH COURT
BEFORE : SURYA PRAKASH KESARWANI, J.
AAQIL JAMIL AND OTHERS ....Applicants
Versus
STATE OF U.P. AND ANOTHER ....Opposite Parties
(Criminal Misc. Application No. 11716 of 2017, decided on 19th April, 2017)
Counsel :
Rishikesh Tripathi for the Applicants; G.A. for the Opposite Parties.
Headnote:Criminal Procedure Code, 1973—Sections 482, 200 and 202—(Indian) Penal Code, 1860—Sections 498-A, 323, 504 and 506—Dowry Prohibition Act, 1961—Sections 3 and 4—Constitution of India, 1950—Articles 14, 15 and 21 and Preamble—Tripple Talaq—Complaint case—Quashing of proceedings—Applicant No. 1 is husband of respondent No. 2, has divorced her and obtained a ‘Fatwa’—Application under Section 156(3), Cr. P.C. filed by respondent No. 2—Quashing of—Under the garb of Personal Law, individual or collective rights of citizens protected by Part III of the Constitution may not be infringed—Talaq of a Muslim wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Articles 14 and 21—Personal Law can always be superseded by legislation—Fatwa issued by whatever body not emanating from any judicial system recognised by law is not binding on anyone including person who had asked for it—Complaint case in question filed by respondent No. 2 does not satisfy tests of Section 482—As per statements recorded under Sections 200 and 202, Cr. P.C, prima facie make out commission of offences by applicants under Sections 498-A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act—Interference with criminal proceedings declined. [Paras 13 to 42]
Result; Application Dismissed.
Hon’ble Surya Prakash Kesarwani, J.—
^^;= uk;ZLrq iwT;Urs jeUrs r= nsork
;= rkLrq u iwT;Urs lokZLr+kQyk% fdz;k%^^
The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the entire proceeding of Criminal Complaint Case No. 2393 of 2016 (Smt. Sumaila v. Aaqil Jamil and others), under Sections 498-A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act, pending in the Court of Additional Chief Judicial Magistrate, Court No. 10, Agra. Further prayer has been made to stay the further proceedings of aforesaid criminal complaint case.
2. Vakalatnama filed by Sri Ashish Goyal, Advocate on behalf of opposite party No. 2 is taken on record.
3. Heard Sri Rishikesh Tripathi, learned counsel for the applicants, Sri Ashish Goyal, learned counsel for opposite party No. 2 and the learned AGA appearing for the State.
Submissions:
4. Learned counsel for the applicants submits that the applicant No. 1 is the husband, who has divorced the opposite party No. 2 on 8.11.2015 and also obtained a ‘Fatwa’ from “Darool Ifta Jama Masjid, Agra” on 10.11.2015, whereby the Mufti City, Agra has affirmed the Talaqnama and pronounced that the opposite party No. 2, after being divorced, has become impure (Haraam) for the applicant No. 1. He submits that after the Talaq, the applicant No. 1 had sent a notice to the opposite party No. 2 that in presence of persons/officers at “Parivar Paramarsh Kendra, Agra” on 8.11.2015, he had divorced her by saying thrice that “I divorce you Sumaila Afgani”, and thus made her free to lead her life in the manner she wants. It is also mentioned in the notice that on 10.11.2015 he has obtained a ‘Fatwa’. He, therefore, submits that since the applicant No. 1 has divorced the opposite party No. 2 on 8.11.2015 and as such the application dated 19.11.2015 filed by opposite party No. 2 under Section 156(3) Cr.P.C. making certain allegations, is malicious and abuse of process of Court and therefore, the impugned summoning order dated 28.11.2016 in Complaint Case No. 2393 of 2016 passed by the learned Additional Chief Judicial Magistrate, Court No. 10, Agra deserves to be quashed. He further submits that once the applicant No. 1 has divorced the opposite party No. 2 on 8.11.2015, the question of commission of offence under Sections 498-A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act does not arise at all. In support of his submissions, he referred to the pleadings of paras 5, 12, 13 and 14 of the affidavit accompanying the Application, the copy of the intimation of Divorce and the copy of the Fatwa. He submits that after the aforesaid validly given Talaq given by the applicant No. 1 to the opposite party No. 2 on 8.11.2015, all her actions including the impugned complaint case proceeding are null and void.
5. Learned A.G.A. supports the impugned order.
6. Learned counsel for opposite party No. 2 submits that in fact the applicants used to beat the opposite party No. 2 mercilessly. They were not giving her food to pressurize her parents for dowry. They have forcibly obtained her signature and thumb impression on blank papers. On some papers, they forced and compelled the opposite party No. 2 to write and sign as dictated by them. Thereafter, they have ousted the opposite party No. 2. He refers to the application of opposite party No. 2 dated 19.11.2015 in which the true incidents have been mentioned. He submits that the story of divorce is totally false and in any case it is wholly illegal and unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India and thus wholly null and void. He refers the statement of the complainant/opposite party No. 2 recorded under Section 200 Cr.P.C. as well as the statement of witnesses under Section 202 Cr.P.C. He submits that the impugned summoning order dated 28.11.2016 has been passed in accordance with law after due consideration of the facts and evidences on record and therefore, the impugned order d
