Hon. Vinod Prasad, J Hon. Rajesh Chandra (Delivered by Hon. Vinod Prasad,J) Dilbar Habib Siddiqui,, the petitioner, has invoked our extra ordinary jurisdiction under Article 226 of The Constitution of India for the relief to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR, Annexure 4, dated 17.3.2010, of Crime No. 136 of 2010, u/s 323, 366, 363 IPC, P.S. Naini, district Allahabad, with additional ancillary prayer for a writ of mandamus commanding respondent police personnels not to interfere in his peaceful matrimonial life with Smt. Khushboo Jaiswal, daughter of respondent no. 3, in pursuant to the impugned FIR, till submission of an opinion/ report u/s 173 (2) Cr. P.C., commonly known as charge sheet against him.
Incapisulated, factual matrix of the writ petition are that informant respondent no. 3 Smt. Sunita Jaiswal is the mother of Khushboo Jaiswal, who was born on 15.3.1991, as is recorded in her Admit Card of High School Examination, issued from Board of High School and Intermeidtae Examination, Annexure No. 1. Claim of the petitioner is that because of lust and greed for economic benefit,parents of Khushboo Jaiswal wanted to solemnise her marriage with an aged individual and therefore Khushboo Jaiswal embraced 2 Muslim religion and contracted marriage with the petitioner on 29.12.2009 and got a Nikahnama, Annexure-3, executed by Kazi and Vakeel. Rankled by inter caste wedlock,the displeased parents of Khushboo Jaiswal resorted to harassing tactics and as a step thereof lodged the impugned FIR on 17.3.201 of Crime No. 136 of 2010, u/s 323, 366, 363 IPC, P.S. Naini, district Allahabad,which FIR, is now prayed to be quashed by the petitioner through instant writ petition as police of P.S. Naini, district Allahabad was endeavouring to apprehend the petitioner in the aforementioned crime number. Writ Petitioner's further pleadings are that when Khushboo Jaiswal gained knowledge about the impugned FIR, she dispatched representations to higher authorities through registered post, a copy of which is appended as Annexure-5 to this writ petition but without any relief.
At the time of admission of this writ petition, Sri Vedmani Tiwari, advocate appeared for the informant mother Smt. Sunita Jaiswal and objected to the admission of this writ petition. In midst of hearing one Smt. Hassibunnisa also appeared before us along with her three children and opposed any relief being granted to the petitioner as she claimed that she is the first legally wedded wife of the petitioner with whom she has three issues. She further informed us that the petitioner deals in human trafficking by indulging into matrimony with various girls and then leaving them as destitutes. On query being made by us from the petitioner, he also admitted present Smt. Hassibunnisa to be his wife. Since we were of the opinion that to do complete justice it is uneschewable legal imperative to hear Smt. Hasibbunnissa, 3 we directed the petitioner to implead her as a respondent in the instant writ petition and consequently she is now respondent no. 4 in this writ petition. Respondent No. 4 expressed her inability to engage a counsel for her self and her children because of financial constraints and economic hardship, therefore, in fitness of things, we permitted Sri Vedmani Tiwari, at his and her request, to plead for her as well. Smt. Hassibunnisa has filed a counter affidavit in the writ petition to which no rejoinder affidavit has been filed by the petitioner's counsel.
In the backdrop of above factual scenario we have heard learned counsel for the writ petitioner and learned AGA,learned counsel for respondent informant and Smt. Hassibunnisa against it.
Hankered with success psyche, learned counsel for the petitioner submitted that alleged abductee Khushboo Jaiswal is major,her date of birth being 15.3.1991, as is recorded in her Admit Card for High School Examination, and therefore, she was legally competent to contract her marriage with the petitioner on her own volition and free will , which she had done without any threat , coercion, misrepresentation, deceit, or allurement and therefore,commission of any offence can not be alleged against the petitioner and resultantly, the impugned FIR and ensued investigation thereunder be quashed. Lending credence to the argument, it was supplemented by submitting that Khushboo Jaiswal has also stated before this court that she has married with the petitioner and her such statement has to be taken as final exoneration of the petitioner from the levelled allegations in 4 the impugned FIR. It was further contended that both the parties are living as spouses and consequently no offence has been committed by the petitioner. Refuting the case of Smt. Hassibunnisa(earlier wife), it was submitted before us that a Muslim is entitled to keep as many as four wives, which is permissible under their personal law, and therefore, even if the petitioner has committed bigamy it is no offence. It was therefore concluded that the writ petition be allowed and impugned FIR and investigation thereunder be quashed.
Per contra, the opposite counsels contended that without divorce the petitioner had entered into nuptial knot with Khushboo Jaiswal,an idolatress, which is not sanctified by Muslim personal law, as Khushboo Jaiswal never embraced Islam and converted herself into Muslim religion. It was further submitted that the petitioner is not in position to maintain his legally wedded wife and his three infant children so he cannot contract second marriage against the tenets of Holy Quran. It was additionally argued that the petitioner is indulging into human trafficking and has left respondent no. 4 and his three children as destitutes to die of starvation and therefore,his act is immoral as well and therefore impugned FIR can not be quashed. It is further submitted that the instant petition is based on suppression of material and vital information about the existence of earlier marriage and having three children by the petitioner and for this reason alone this writ petition deserves to be dismissed.
The primary question which is to be adjudicated by us is as to whether the impugned FIR can be quashed or not 5 on the peculiar facts of the writ petition? A perusal of the contents of the impugned FIR indicates that Khushboo Jaiswal is alleged to have been abducted by the petitioner three months prior to the lodging of it. By his dexterous manuvours and deceit petitioner had succeeded in not getting the FIR registered against him for all this period. It is informant's allegation that petitioner had abducted her daughter. Writ Petition further reveals that Khushboo never converted herself into Islam. There is no document regarding her such conversion. In our above conclusion we are fortified by the fact that in the affidavit and application filed by Khusboo herself subsequent to her alleged contract marriage she has described herself as Khushboo and not by any Islamic name. As Khushboo she could not have contracted marriage according to Muslim customs. In those referred documents she has addressed herself as Khushboo Jaiswal daughter of Rajesh Jaiswal. Thus what is conspicuously clear unerringly without any ambiguity is that Khushboo Jaiswal never converted and embraced Islam and therefore her marital tie with the petitioner Dilbar Habib Siddiqui is a void marriage since the same is contrary to Islamic dicta and tenets of Holy Quran. It is recollected here that Nikah i.e. marriage in pre- Islamic Arabia, meant different forms of sex relationships between a man and a woman. Prophet Mohammed brought about a complete change in the position of woman in society through Holy Quran, which is the primary and basic source of Islamic Law. In this respect we can do no better than to refer the verses of Holy Quran. Sura 2 Ayat 221 of The Holy Quran as is mentioned in the text book of Mohammedan Law 6 by I.Mulla, Ist Edition, 2nd reprint, at page 162,provides as follows:-
"Do not marry unbelieving women until they believe...... Nor marry your girls to unbelievers until they believe" .
Here a believing women is referred to such a women who has embraced Islam and has faith in Prophet Mohammed. Marriage in Muslim law is not only a ritual but is also "a devotional act" as Dr.M.U.S. Jang referred it in his book 'Desertion on the Development of Muslim Law in British India' (page 1.2.). I. Mulla in his above text book at page 166 has written thus:-
"Koranic injunctions recognise in Islam, marriage as the basis of society. Though it is a contract, it is also a sacred covenant. Temporary marriages are forbidden. Marriage as an institution leads to the uplift of man and is a means for the continuance of human race."
Thus what is well recognised in Muslim Law is that marriage is a sacred act. For essentials of a valid muslim marriage, AL-HAJ MAULANA FAZLUL KARIM in his translation and commentary of Mishkat-ul- Masabih , AL- HADIS (BOOK II), CHAPTER XXVII, SECTION 2,has written thus:-
" In tradition, we find that the following qualifications of a bride should be sought. The bride should be (1) a Muslim (2) chaste (3) virgin,(4) beautiful, (5) accomplished, (6) having sweet tongue, and good manners, (7) possessing property , (8) having children bearing capacity and affectionate nature and (9) equal respectibility."
Thus for a valid muslim marriage both the spouses have to be muslim. In the present writ petition this condition is not satisfied as the writ petition lacks credible and accountable material in this respect on which reliance can be placed.
Coming to another limb of argument raised by counsel for the petitioner that a muslim man is entitled to marry four time, we once again revert back to recognised treatises. We find that Sura 4 Ayat 3 of The Holy Quran provides for giving due care and provisions for a Muslim women. The said Ayat, as is referred to in the treatise by I.Mulla, is referred to below:-
"(vi) Number of wives- If ye fear that ye shall not be able to deal justly with the orphans ( orphan wives and their property); marry woman of your choice, two or three or four; But if you fear that ye shall not be able to deal justly (with them), then only one...........that would be more suitable to prevent you from doing injustice."
From the perusal of above Ayats it is abundantly clear that bigamy is not sanctified unless a man can do justice to orphans. The said Ayat mandates all Muslims men to 'deal justly with orphans and then they can marry women of their choice two or three or four but if they fear that they will not be able to deal justly with them then only one. We are of the view, that such a religious mandate has been given to all the Muslims for a greater social purpose. If a Muslim man is not capable of fostering his wife and children then he cannot be allowed the liberty to marry other women as that will be against the said Sura 4 -Ayat-3.This aspect of the matter should not vex our mind further as the same came up before 8 the apex court as well in Javed And Others versus State of Haryana: AIR 2003 SC 3057 and therefore we conclude this aspect of the submission by referring to the words of the apex court in that decision, which are as follows:-
"The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. The question of the impugned provision of Haryana Act being violative of Art. 25 does not arise."
Reverting back to the facts of the present writ petition it is recollected that the facts are such where the petitioner has left his wife and the three children born of the said wedlock as destitutes. He cannot be allowed to remarry to leave his wife and children as a destitutes as that will be against the tenets of The Holy Quran which no Muslim can even dare to disobey. However, the fact remains is that without divorcing his first wife and without dealing with his three children in a fair and just manner, the petitioner claims to have married with alleged Khushboo Jaiswal contrary to Sura 2 Ayat 221and Sura 4-Ayat-3 and therefore, his alleged marital knot can not be legally sanctified. The whole basis of the present writ petition is that petitioner has married with Khushboo Jaiswal and therefore, he has not committed any offence. Khushboo Jaiswal was under the guardianship of her parents. Her age, as is mentioned in the FIR is 16 years. She 9 was taken out of the custody of her parents by the petitioner. Albeit, Khushboo Jaiswal claims that she is a major and she has married with petitioner on her own volition but the fact remains is that her marriage with petitioner is wholly void.
There is yet another reason for us not to interfere in this writ petition and that is that this petition is based on suppression of cogent and relevant material from us. Writ is an equitable remedy. One who claims equity must come with clean hands. Petitioner intentionally and deliberately concealed referring his earlier marriage and having three children from that wedlock. Albeit married he has decieved Khushboo Jaiswal , who did not intimate us that she was in the knowledge of petitioner's first marriage. In such a view, we are not inclined to quash the impugned F.I.R.
This writ petition for the prayer of quashing of the impugned F.I.R. dated 17.3.2010 registered as Crime No. 136 of 2010 for offences under Sections 323, 366, 363 IPC, Police Station Naini, District Allahabad, is dismissed. However we direct that investigation in the said crime be conducted expeditiously in a fair and just manner. Khushboo Jaiswal, who is lodged in Nari Niketan is directed to be set at liberty. As she can not be left as destitute, we consider it appropriate to direct that she shall be handed over to her parents by the authorities of the Nari Niketan.
Writ petition is dismissed with the aforesaid directions. 10.05.2010 SKS/Rk 6169/2010