# Khusnuma Khatoon And Others v. State Of U.P. And Anr. 248 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

- **Citation:** (2013) 1 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013
- **Case number:** Criminal Misc. Application No. 26656 of 2012
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khusnuma-khatoon-and-others-v-state-of-u-p-and-anr-248-indian-law-reports-42458
- **Pages:** 6

## Headnote

Criminal Procedure Code Section 482application for quashing proceeding of
complaint case-offence under section
498-A, 323, 506 I.P.C. And 3⁄4 D.P. Actfrom bare perusal of statement under
section 200 and 202-general allegation
against the applicants-who are sister-inlaw or brother-in-law living separatelydragged only because belongs to family
of
the
husband
of
complainant-no
allegation of cruelty or demand of
dowry-proceeding quashed.

Held: Para-11

Considered the submissions made by
learned counsel for the parties. From the
perusal
of
the
complaint
and
the
statement of the complainant and it's
witnesses recorded u/s 200 and 202
Cr.P.C., it is apparent that only general
allegations have been levelled against
the applicants who married sisters and
brother-in-law of the husband Zubair
Ahmed.
The
applicants
are
living
separately from the husband of opposite
party no.2 which is evident from the
documents annexed with the present
application. The said fact also finds
mention in para no.5 and 6 of the
affidavit of the present application which
is unrebutted by the opposite party no.2
has also not appeared before this court
to contest the matter in spite of the
service of notice of the application. The
propositions of law laid down in the case
of Preeti Gupta Vs. State of Jharkhand
(Supra) and Smt. Geeta Mehrotra Vs.
State of U.P (Supra) is fully applicable in
the instant case as the applicants who
are sister-in-laws and brother-in-law of
the
complainant
have
been
simply
dragged in the present case as they are
family members of the husband Zubair
Ahmed
excepting
bald
allegations
against them in the complaint and in the
statement of the complainant and her
witnesses there is nothing on record
which may show any overt act on their
part
subjecting
the
complainant
to
cruelty to satisfy unlawful demands of
dowry. Thus, it is a fit case for exercise
of inherent power of this Court u/s 482
Cr.P.C for quashing of the proceedings
against the applicants.
Case Law discussed:
2010 SCC (Cr.) Volume III page 473; 2012
(10) ADJ page 464; (2000) 3 SCC 693; AIR
2003 SC 1386

## Text

1 All] Khusnuma Khatoon And Others Vs. State of U.P. And Another
247
including the marks obtained in the
written test and the interview already
held. The appeal is allowed with no order
as to costs."

9. Again in the case reported in
(1997) 4 SCC 301, P. Sadagopan and
others vs. Food Corporation of India,
Zonal Officer (South Zone) and another
the same principle has been laid down by
the Supreme Court in para-3. Para-3 of
the said judgement reads as follows:-

"The Regulation provides that such
of the candidates who have put in three
years' experience as Assistant, Category I
are
eligible
to
be
considered
for
promotion as Assistant Managers in
Category II post. It is now settled legal
position that executive instructions cannot
be issued in derogation of the statutory
Regulations. In view of the fact that the
statutory
Regulations
require
that
experience of three years is a pre-
condition to consideration for promotion
to Category II post from Category I post,
it would be obvious that any relaxation
was
in
defeasance
of
the
above
Regulations.
The
Division
Bench,
therefore, was not right in upholding the
power of the Board in directing relaxation
of
the
statutory
regulations
and
consideration
of
the
cases
without
considering the claims of all the eligible
persons. Moreover, later the Board itself
cancelled the 1970 panel. The Regulation
issued for promotion of the Scheduled
Castes and Scheduled Tribes should also
be considered. Admittedly,they were not
considered. Since the claims of all the
persons are not before us, we do not
propose to close the matter at this end.
Accordingly, we set aside the order of the
Division Bench and direct the authorities
concerned to determine the promotions of
all the eligible persons in accordance
with the statutory regulations and pass
appropriate orders within a period of six
months from the date of the receipt of the
order."

10. Thus the G.O. dated 9.2.2007 is
absolutely illegal and arbitrary and
contrary to statutory Regulations framed
under the U.P. Intermediate Education
Act, 1921 and has no legs to stand and is
accordingly quashed. The impugned order
dated 21.2.2007 based upon the G.O.
dated 9.2.2007 is also illegal and is
accordingly quashed.

11. The writ petition is allowed.

12. Sri Indra Raj Singh submitted
that the petitioner has not been paid salary
in view of the G.O. dated 9.2.2007 and
impugned order dated 21.2.2007. In this
regard the petitioner may make a
representation to the District Inspector of
Schools within a period of ten days from
today. If such representation is filed,
respondent no.1, the District Inspector of
Schools, Jyotiba Phule Nagar shall decide
the same within a period of one month
thereof regarding financial approval for
payment of salary to the petitioner.
---------
 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2013

BEFORE
THE HON'BLE RAMESH SINHA,J.

Criminal Misc. Application No. 26656 of
2012

Khusnuma Khatoon And Others...Applicants
Versus
State Of U.P. And Anr. ...Opposite Parties
248 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Counsel for the Petitioner:
Sri Vijay Shanker Singh

Counsel for the Respondents:
Govt. Advocate

Criminal Procedure Code Section 482application for quashing proceeding of
complaint case-offence under section
498-A, 323, 506 I.P.C. And 3⁄4 D.P. Actfrom bare perusal of statement under
section 200 and 202-general allegation
against the applicants-who are sister-inlaw or brother-in-law living separatelydragged only because belongs to family
of
the
husband
of
complainant-no
allegation of cruelty or demand of
dowry-proceeding quashed.

Held: Para-11

Considered the submissions made by
learned counsel for the parties. From the
perusal
of
the
complaint
and
the
statement of the complainant and it's
witnesses recorded u/s 200 and 202
Cr.P.C., it is apparent that only general
allegations have been levelled against
the applicants who married sisters and
brother-in-law of the husband Zubair
Ahmed.
The
applicants
are
living
separately from the husband of opposite
party no.2 which is evident from the
documents annexed with the present
application. The said fact also finds
mention in para no.5 and 6 of the
affidavit of the present application which
is unrebutted by the opposite party no.2
has also not appeared before this court
to contest the matter in spite of the
service of notice of the application. The
propositions of law laid down in the case
of Preeti Gupta Vs. State of Jharkhand
(Supra) and Smt. Geeta Mehrotra Vs.
State of U.P (Supra) is fully applicable in
the instant case as the applicants who
are sister-in-laws and brother-in-law of
the
complainant
have
been
simply
dragged in the present case as they are
family members of the husband Zubair
Ahmed
excepting
bald
allegations
against them in the complaint and in the
statement of the complainant and her
witnesses there is nothing on record
which may show any overt act on their
part
subjecting
the
complainant
to
cruelty to satisfy unlawful demands of
dowry. Thus, it is a fit case for exercise
of inherent power of this Court u/s 482
Cr.P.C for quashing of the proceedings
against the applicants.
Case Law discussed:
2010 SCC (Cr.) Volume III page 473; 2012
(10) ADJ page 464; (2000) 3 SCC 693; AIR
2003 SC 1386

(Delivered by Hon'ble Ramesh Sinha,J.)

1. Heard Smt Kamla Singh, holding
brief of Sri Vijay Shanker Singh, learned
counsel for the applicants and learned
A.G.A. for the State.

2. The applicants, through the
present application under Section 482
Cr.P.C., have invoked the inherent
jurisdiction of this Court with a prayer to
quash the proceeding in Complaint Case
No.1282 of 2011, u/s 498-A, 323, 506
IPC and 3/4 D.P.Act, P.S. Haldharpur,
district Mau pending before the Judicial
Magistrate, Mau.

3. As per office report dated
4.2.2013, it has been reported that the
notice issued to opposite party no.2 has
been received back after unserved as she
refused to receive the notice. Hence the
notice to her about the present case is
deemed to be sufficient.

4. The prosecution case as stated in
the application u/s156(3) Cr.P.C by Smt.
Reshma Bano that her marriage was
solemnized on 19.4.2009 with Zubair
Ahmad in accordance with Islamic rituals
at Azamgarh. In the marriage, certain gifts
were given by her father according to his
resources. The
wife performed
her
1 All] Khusnuma Khatoon And Others Vs. State of U.P. And Another
249
matrimonial obligations but after the
marriage when the complainant went to
her in-laws house, her in-laws i.e. motherin-law Sageera, Khushnuma Khatoon,
Shabnam Khatoon daughters of late
Jainuddin and the two Jethani's namely
Guddi and Parveen, R/o Gojha Devkali,
P.S. Bubarakpur and Nandoi Asaf Khan,
S/o Shabbir, R/o Nava Sarai, P.S. Gosi,
district
Mau
started
harassing
the
complainant for bringing less dowry from
her house and further stated that in dowry
if motorcycle and Rs.50,000/- is not
brought by her, then she will not be
allowed to live at her in-laws place. The
complainant told about poverty of her
parents to meet the demand and she
informed about the said harassment for
want of dowry to her parents but they
consoled her by saying that everything
will be in order. The harassment of the inlaws by the complainant increased day by
day and she was beaten very often and
was not given food. The complainant at
several occasions had gone to her parents
house and thereafter used to return to her
in-laws place but the behaviour of the inlaws towards her was not good and their
harassment was mounting regularly. After
the festival of Eid, the husband Zubair
Ahmad and her Jethani and Nanad had
ousted her after beating her and took
away all her articles. Somehow, the
complainant reached her parents house
and narrated all the story of harassment to
them, some times during her stay at her
parents house there were talks for settling
the issue but the in-laws were adamant to
their
demand
for
motorcycle
and
Rs.50,000/- from the parents of the
complainant and they were not ready to
keep her. After 15 days, she had gone
with her father to her in-laws house, then
all of them started assaulting her and she
was threatened for her life and property.
She and her father managed to come back
and informed the Police about the incident
but her FIR was not lodged against the
accused persons. On 20.5.2011, she sent
on information to Superintendent of
Police informing about the incident by
registered post.

5. When the FIR of the complainant
was
not
lodged,
then
she
moved
application on 5.6.2011 before the C.J.M.,
Mau for directing the concerned officer of
the Police Station for registering an FIR
against the accused persons and get the
case investigated. The learned Magistrate
treated the said application as complaint
and directed that the matter be registered
as complaint case. The statement of
complainant Reshma Bano was recorded
u/s 200 Cr.P.C. and her witness Mohd.
Ayub and Rafi Ullah u/s 202 Cr.P.C
respectively. On 2.6.2012, the learned
Magistrate finding a prima-facie offence
disclosed against the co-accused persons
including applicants summoned them for
trial u/s 498-A, 323, 506 and 3/4 Dowry
Prohibition Act.

6. It has been submitted by learned
counsel for the applicants that the
marriage between the Zubair Ahmad who
is the brother of the applicant no.1 and
complainant
Reshma
Bano
was
solemnized on 19.4.2009. The applicant
no.1 Khusnuma Khatoon and applicant
no.2 Asif Khan are the sister-in-law and
brother-in-law whereas applicant no.3
Shabnam Khatoon is also married sisterin-law of complainant and are living
separately with their husbands. It is
submitted
that
the
applicant
no.1
Khushnuma Khatoon was married with
applicant no.2 Asif Khan in the year 1998
and they are having two children namely
Mohd. Arshan and Falak Khatoon who
250 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
are 11 years and 8 years respectively
Applicant no.3 Shabnam was married
with Anis Khan 20 years ago and they are
having a minor son aged about 12 years.
The applicant no.1 is residing separately
from her brother who is married to
complainant in district Mau. Similarly
applicant no.3 is also living separately
and they have also filed ration card as
documentary proof of separate living.

7. It is further contended by learned
counsel for the applicant that the
application 156(3) Cr.P.C, which was
treated as complaint by the Magistrate as
well as the statement of the complainant
and it's witnesses u/s 200 and 202 Cr.P.C,
the allegations which have been levelled
against the applicant are general and
vague
in
nature
and
no
specific
allegations have been levelled against
them along with other co-accused persons
who are the family members of the
husband of complaint/opposite party no.2.
The complainant due to some dispute with
her husband has left her house and went
to her parents house and the applicants
have no concern with their disputes.

8. Learned counsel for the applicant
has placed reliance on the judgment of the
Apex Court in the case of Preeti Gupta
Vs. State of Jharkhand reported in
2010 SCC (Cr.) Volume III page 473
and Geeta Mehrotra Vs. State of U.P
reported in 2012 (10) ADJ, page 464
and has submitted that the the prosecution
of the applicants is malicious and misuse
of process of law and no offence
whatsoever is made out against the
applicants. She has placed reliance of the
following paragraphs of the judgment of
Geeta Mehrotra Case (Supra):-

17. Their Lordships of the Supreme
Court in this matter had been pleased to
hold that the bald allegations made
against the sister in law by the
complainant appeared to suggest the
anxiety of the informant to rope in as
many of the husband's relatives as
possible. It was held that neither the FIR
nor the charge sheet furnished the legal
basis
for
the
magistrate
to
take
cognizance of the offences alleged against
the appellants. The learned Judges were
pleased to hold that looking to the
allegations in the FIR and the contents of
the charge sheet, none of the alleged
offences under Section 498 A, 406 and
Section 4 of the Dowry Prohibition Act
were made against the married sister of
the complainant's husband who was
undisputedly not living with the family of
the
complainant's
husband.
Their
Lordships of the Supreme Court were
pleased to hold that the High Court ought
not to have relegated the sister in law to
the ordeal of trial. Accordingly, the
proceedings against the appellants were
quashed and the appeal was allowed.

19.Coming to the facts of this case,
when the contents of the FIR is perused, it
is apparent that there are no allegations
against Kumari Geeta Mehrotra and
Ramji Mehrotra except casual reference
of their names who have been included in
the FIR but mere casual reference of the
names of the family members in a
matrimonial dispute without allegation of
active involvement in the matter would
not justify taking cognizance against them
overlooking the fact borne out of
experience that there is a tendency to
involve the entire family members of the
household in the domestic quarrel taking
place in a matrimonial dispute specially if
it happens soon after the wedding.
1 All] Khusnuma Khatoon And Others Vs. State of U.P. And Another
251

20. It would be relevant at this stage
to take note of an apt observation of this
Court recorded in the matter of G.V. Rao
vs. L.H.V. Prasad and others reported in
(2000) 3 SCC 693 wherein also in a
matrimonial dispute, this Court had held
that the High Court should have quashed
the
complaint
arising
out
of
a
matrimonial dispute wherein all family
members had been roped into the
matrimonial litigation which was quashed
and set aside. Their Lordships observed
therein with which we entirely agree that:

"there has been an outburst of
matrimonial dispute in recent times.
Marriage is a sacred ceremony, main
purpose of which is to enable the young
couple to settle down in life and live
peacefully.
But
little
matrimonial
skirmishes suddenly erupt which often
assume serious proportions resulting in
heinous crimes in which elders of the
family are also involved with the result
that those who could have counselled and
brought
about
rapprochement
are
rendered helpless on their being arrayed
as accused in the criminal case. There are
many reasons which need not be
mentioned here for not encouraging
matrimonial litigation so that the parties
may ponder over their defaults and
terminate the disputes amicably by mutual
agreement instead of fighting it out in a
court of law where it takes years and
years to conclude and in that process the
parties lose their "young" days in chasing
their cases in different courts."

The view taken by the judges in this
matter was that the courts would not
encourage such disputes.

21. In yet another case in the matter
of B.S. Joshi and others vs. State of
Haryana and another (reported in AIR
2003 SC 1386), it was observed that there
is no doubt that the object of introducing
Chapter XXA containing Section 498A in
the Indian Penal Code was to prevent the
torture to a woman by her husband or by
relatives of her husband. Section 498A
was added with a view to punish the
husband and his relatives who harass or
torture the wife to coerce her relatives to
satisfy unlawful demands of dowry. But if
the proceedings are initiated by the wife
under Section 498A against the husband
and his relatives and subsequently she has
settled her disputes with her husband and
his relatives and the wife and husband
agreed for mutual divorce, refusal to
exercise inherent powers by the High
Court would not be proper as it would
prevent woman from settling earlier. Thus
for the purpose of securing the ends of
justice
quashing
of
FIR
becomes
necessary, Section 320 Cr.P.C. would not
be a bar to the exercise of power of
quashing. It would however be a different
matter depending upon the facts and
circumstances of each case whether to
exercise or not to exercise such a power.

24. However, we deem it appropriate
to add by way of caution that we may not
be misunderstood so as to infer that even
if there are allegation of overt act
indicating the complicity of the members
of the family named in the FIR in a given
case, cognizance would be unjustified but
what
we
wish
to
emphasize
by
highlighting is that, if the FIR as it stands
does not disclose specific allegation
against accused more so against the coaccused specially in a matter arising out
of matrimonial bickering, it would be
clear abuse of the legal and judicial
process to mechanically send the named
accused in the FIR to undergo the trial
252 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
unless of course the FIR discloses specific
allegations which would persuade the
court to take cognizance of the offence
alleged against the relatives of the main
accused who are prima facie not found to
have indulged in physical and mental
torture of the complainant-wife. It is the
well settled principle laid down in cases
too numerous to mention, that if the FIR
did not disclose the commission of an
offence, the court would be justified in
quashing the proceedings preventing the
abuse
of
the
process
of
law.
Simultaneously, the courts are expected to
adopt a cautious approach in matters of
quashing
specially
in
cases
of
matrimonial dispute whether the FIR in
fact discloses commission of an offence by
the relatives of the principal accused or
the FIR prima facie discloses a case of
over-implication by involving the entire
family of the accused at the instance of
the complainant, who is out to settle her
scores arising out of the teething problem
or skirmish of domestic bickering while
settling down in her new matrimonial
surrounding.

9. Learned AGA has tried to justify
the summoning order passed by the
learned Magistrate but could not point out
any specific allegations against the
applicants.

10. Considered the submissions
made by learned counsel for the parties.
From the perusal of the complaint and the
statement of the complainant and it's
witnesses recorded u/s 200 and 202
Cr.P.C., it is apparent that only general
allegations have been levelled against the
applicants who married sisters and
brother-in-law of the husband Zubair
Ahmed.
The
applicants
are
living
separately from the husband of opposite
party no.2 which is evident from the
documents annexed with the present
application. The said fact also finds
mention in para no.5 and 6 of the affidavit
of the present application which is
unrebutted by the opposite party no.2 has
also not appeared before this court to
contest the matter in spite of the service of
notice of the application. The propositions
of law laid down in the case of Preeti
Gupta Vs. State of Jharkhand (Supra)
and Smt. Geeta Mehrotra Vs. State of
U.P (Supra) is fully applicable in the
instant case as the applicants who are
sister-in-laws and brother-in-law of the
complainant have been simply dragged in
the present case as they are family
members of the husband Zubair Ahmed
excepting bald allegations against them in
the complaint and in the statement of the
complainant and her witnesses there is
nothing on record which may show any
overt act on their part subjecting the
complainant to cruelty to satisfy unlawful
demands of dowry. Thus, it is a fit case
for exercise of inherent power of this
Court u/s 482 Cr.P.C for quashing of the
proceedings against the applicants.

11. In this view of the matter, so far
as applicants Khusnuma Khatoon, Ashif
Khan
and
Shabnam
Khatoon
is
concerned,
the
proceedings
of
the
Complaint Case No.1282 of 2011, u/s
498-A, 323, 506 IPC and 3/4 D.P.Act,
P.S. Haldharpur, district Mau pending
before the Judicial Magistrate, Mau is
hereby quashed and the petition is
allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.