JUDGMENT
B.L. Bhat, J.
1. Azaz Hussain petitioner has approached this court for quashing of FIR No. 34 of 2001 dated 14.9.2001 of Police Station Kalakote and the subsequent proceedings initiated in this behalf by the learned Judicial Magistrate Kalakote.
2. Precisely stating the facts of the case are that by virtue of docket addressed to Police Station Kalakote accompanying with the record of No. 20 of 14.9.2001 maintained in the case diary of Police Station Rajouri for the registration of the case stating that Mohd. Amin, ASI, who on 14.9.2001 was on duty recorded the statement of an injured, namely, Mst. Saleema Akhter wife of Azaz Hussain resident of Dam Barota tehsil Kalakote, who stated that about 6 to 7 years back she is married to Azaz Hussain and she is being harassed by way of beating in her matrimonial house by her husband Azaz Hussain, Imtiyaz Ahmad, her brother-in-law, Mst. Nqz Bi, Mst Hakam Bi, Kalalat Bi, Kulsum Rashida, Minshi Gh. Hassan all residents of Barota tehsil Kalakote and that her husband contracted his second marriage, on her asking about it her husband and others beat her and also asked her to get an amount of Rs. 16,000/- to Rs. 15,000/- from her parents besides maize and rice. In case she fails to do so, she will be turned out from the house that on her failure to meet their demands, her husband alongwith other said persons beat her and she apprehends danger to her life at their hands. Pursuant to this report, the FIR in question came to be registered after usual investigation, the Police Kalakote have charge sheeted the petitioner alongwith other accused before the court of learned Judicial Magistrate, kalakote for offence under Section 498A and 323.
3. The stand of the petitioner through the medium of the petition is that the informant Mst. Saleema Akhter was married to him but this marriage came to an end in a local Panchayat in which on 12.8.2001, he pronounced Talaq to her. It is further submitted that said informant in her civil suit No. 2 pauper dated 23.3.2002 pending before the learned District Judge, Rajouri, she has admitted that after proounceent of Talaq to her on 12.10.2001 by her husband Azaz Hussain, she was turned out from her matrimonial home. It is also contended that in the said civil suit said Mst. Saleema Akhter made a statement before the learned District Judge Rajouri wherein she admitted the factum of Talaq pronounced to her by her erstwhile husband, the petitioner Azaz Hussain. On the strength of these contentions, it is urged that the FIR on the face of it is based on concocted facts therefore, the proceedings initiated against the accused in the criminal case on the basis of FIR in question for an offence under Section 498A is not sustainable.
4. Heard Mr. B.D Nayar appearing on behalf of the petitioner and Mr. S.C Gupta, AAG, on behalf of the respondents. Before a person is said to have prima-facie committed an offence under Section 498A it is to be made out that she is a married woman and the accused being her husband or relative of the husband of such woman is subjected to cruelty by her said husband and his relatives. Having regard to this law, it is manifestly clear from the photo copy of the Talaq Nama which is annexure A, reveals that on 12.8.2001 Azaz Hussain the petitioner has pronounced Talaq to his wife Mst. Saleema Akhter the informant. The certified copy of the plaint in pauper suit which is file No. 2 of 23.3.2002 pending decision
before the learned District Judge, it is manifest that Mst Saleema Akhter the informant has admitted in para No 3 of her plaint petition that Talaq has been pronounced to her on 12.8.2001 by her husband Azaz Hussain, the petitioner. Annexure C is a certified copy of the statement of the informant recorded by the trial court in enquiry to find out as to whether she is indigent person. She has stated that it is correct to say that on 12.8.2001, the defendant i.e, the petitioner herein has pronounced her Talaq by written divorce deed. Annexure D on the file is the photo stat copy of the order recorded by the District Judicial Mobile Magistrate Rajouri on the file No. Misc of 21.9.2001 decided on 9.4.2002 titled as Mst Saleema Akhter v. Azaz Hussain, whereby he came to dismiss the petition for grant of maintenance filed by Mst Saleema Aktar against her husband Azaz Hussain, the petitioner after holding that petitioner has been divorced prior to the presentation of this petition.
5. From the perusal of these annexures, it is manifest that on the date of occurance which is stated to be on 15.09.2001, Mst. Saleema the informant of the case who is allegedly to be subject to cruelty in the matrimonial House when she was married to Azaz Hussain has ceased to be his wife on 12.8.2001. Therefore, the allegations set forth in the FIR as well as charge sheet against the accused on the face of
it false concocted cannot be believed. This being so, if the FIR in question as well as the proceedings initiated thereon are not quashed that will result into abuse of the process of the course and will cause the miscarriage of Justice.
6. Viewed thus, the petition is allowed, the FIR in question and the proceedings initiated in the case on the basis of this FIR and final report lodged before the learned Judicial Magistrate 1st class kalakote is quashed.