# Wasif Revisionist v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-13
- **Case number:** Criminal Revision No. 751 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wasif-revisionist-v-state-of-u-p-anr-48501
- **Pages:** 8

## Headnote

Criminal Law - Juvenile Justice (Care and
Protection of Children) Act, 2015-Sections
18 & 94- Cancelation of interim bail by
Juvenile Justice Board- The enquiry on the
point of juvenility has nothing to do with
the enquiry as contemplated under other
legislations- In no case the child below
sixteen years of age having committed an
heinous offence can be detained as
convict in regular jails. The punishment as
provided under the above provisions is
basically
of
reformative
nature.
The
general principles of care and protection
of children as given in Chapter 2 of J. J.
Act also include a principle of repatriation
and restoration of every child with his
family at the earliest. Section 94 of the
Act,
2015
provides
presumption
and
determination of age of juvenile and such
presumption is not conclusive to prove the
case and is rebuttable on the evidence
lead by the aggrieved parties.

The inquiry as provided under the Act 2015 is
different from that under other laws since the
Act 2015 is a special beneficial enactment
providing a specific mode for conducting an
inquiry for the determination of age of a
juvenile in conflict with law however the
presumption under Section 94 is rebuttable by
either of the parties.

Criminal Law - Juvenile Justice (Care
and Protection of Children) Act, 2015-
Section 94- Even assuming without
admitting that the revisionist had failed
to appear on the date fixed before the
Juvenile Justice Board during enquiry
under Section 94 of the Act, 2015, then
at most it would have rejected the claim
of juvenility. The Board had failed to
perform its obligatory duty provided
under the provisions of the Act, 2015 in
not deciding the claim of juvenility of
revisionist for the last five years. Both
the Board as well as the appellate court
failed to notice that there is no provision
for cancellation of bail once granted to
any delinquent juvenile under the Act,

## Text

5 All. Wasif Vs. State of U.P. & Anr.
249

15. Let the lower court record, if any,
be returned back to the court concerned.

16. The file is consigned to record.
----------
(2022)05ILR A249
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 751 of 2022

Wasif ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sushil Shukla, Sri Aditya Prakash Singh

Counsel for the Opposite Parties:
A.G.A.

Criminal Law - Juvenile Justice (Care and
Protection of Children) Act, 2015-Sections
18 & 94- Cancelation of interim bail by
Juvenile Justice Board- The enquiry on the
point of juvenility has nothing to do with
the enquiry as contemplated under other
legislations- In no case the child below
sixteen years of age having committed an
heinous offence can be detained as
convict in regular jails. The punishment as
provided under the above provisions is
basically
of
reformative
nature.
The
general principles of care and protection
of children as given in Chapter 2 of J. J.
Act also include a principle of repatriation
and restoration of every child with his
family at the earliest. Section 94 of the
Act,
2015
provides
presumption
and
determination of age of juvenile and such
presumption is not conclusive to prove the
case and is rebuttable on the evidence
lead by the aggrieved parties.

The inquiry as provided under the Act 2015 is
different from that under other laws since the
Act 2015 is a special beneficial enactment
providing a specific mode for conducting an
inquiry for the determination of age of a
juvenile in conflict with law however the
presumption under Section 94 is rebuttable by
either of the parties.

Criminal Law - Juvenile Justice (Care
and Protection of Children) Act, 2015-
Section 94- Even assuming without
admitting that the revisionist had failed
to appear on the date fixed before the
Juvenile Justice Board during enquiry
under Section 94 of the Act, 2015, then
at most it would have rejected the claim
of juvenility. The Board had failed to
perform its obligatory duty provided
under the provisions of the Act, 2015 in
not deciding the claim of juvenility of
revisionist for the last five years. Both
the Board as well as the appellate court
failed to notice that there is no provision
for cancellation of bail once granted to
any delinquent juvenile under the Act,
2015.

Where the Act 2015 does not provide for the
cancelation of bail once granted to a juvenile,
then cancellation of bail by either the Board or
the Appellate court would be illegal and
arbitrary.

Criminal Law - Juvenile Justice (Care and
Protection of Children) Act, 2015- Section
94- Once the educational documents filed
by the revisionist mention his date of birth
consistently on all levels, which was
supported by the birth certificate issued
by the concerned Registrar and there
appears no contrary evidence before the
Board, the Board ought to have decide the
issue of juvenility of the revisionist, and
not deciding his claim of juvenility the
Board has caused great prejudice to the
revisionist who was made to face trial
with the other co-accused persons before
the trial court for the last more than five
years.

The determination of age of a juvenile in conflict
with law should be done within a reasonable
time by the Board, otherwise the delay in
deciding the same will result in the trial of the
250 INDIAN LAW REPORTS ALLAHABAD SERIES
juvenile with other co-accused, which violates
the spirit, and intent of the Act.( Para 22, 25,
27, 28)

Criminal Revision allowed. (E-3)

Judgements/ Case law relied upon:-

1. Ashwani Kumar Saxena Vs St. of M.P. in Crl.
Appeal No. 1403 of 2021 (dec. on 13.09.2012),

2. Sanat Kumar Yadav Vs St. of M.P. in Crl. Rev.
No. 3049 of 2016 (dec.on 02.01.2017)

3. Rishipal Singh Solanki Vs St. of U.P. in Crl.
Appeal No. 1240 of 2021 (dec. on 18.11.2021),

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This Court vide order 25.03.2022
issued notice to the opposite party No. 2.
Office report dated 11.04.2022 indicates
that notice has already been served upon
the opposite party No. 2 through legal heirs
as per the report of the Chief Judicial
Magistrate,
Bulandshahar
dated
08.04.2022. Thereafter, the case was again
taken up on 11.04.2022. Today when the
case is being taken up in the revised call,
even no one has put in appearance on
behalf of opposite party No. 2, nor any
counter affidavit has been filed on his
behalf. It appears that opposite party No. 2
is not interested to contest the case.

2. Counter affidavit filed on behalf of
State is on the record.

3. Learned counsel for the revisionist
denied the averments made in the counter
affidavit filed on behalf of State.

4. In view of the aforesaid, the Court
proceeds to decide the matter finally.

5.
 Heard
Shri
Sushil
Shukla,
Advocate, assisted by Shri Aditya Prakash
Singh,
the
learned
counsel
for
the
revisionist and Shri Vinay Prakash Sahu,
the learned A.G.A. for the State.

6. This revision is directed against the
order dated 27.02.2020 passed by the court
of Juvenile Justice Board, Bulandshahar in
Criminal Misc. Case No. 97 of 2016,
arising out of Case Crime No. 483 of 2016,
under Sections 420, 457, 471, 120-B I.P.C.,
P.S. Khurja Nagar, District Bulandshahar,
by which the Juvenile Justice Board had
cancelled the interim bail granted to the
accused-revisionist by the learned Sessions
Judge, Bulandshahar. Aggrieved from the
order dated 27.02.2020 the revisionist
challenged the same before the court of
learned Additional Sessions Judge/ Special
Judge (POCSO Act), Bulandshahar in
Criminal Appeal No. 9 of 2022, which was
dismissed by the learned appellate court
vide order dated 29.01.2022, affirming the
order dated 27.02.2020 passed by the
Juvenile
Justice
Board.
Against
the
aforesaid orders the present revision is
being preferred before this Court.

7. Learned counsel for the revisionist
submits that the only legal question
involved in this case is whether Juvenile
Justice Board who is only competent to
determine age of revisionist as to whether
he was juvenile on the date of incident or
not, can cancel the interim bail granted by
the court of Session Judge, Bulandshahar,
and whether the Board has vested with its
jurisdiction
or
has
exceeded
its
jurisdiction.

8. Learned counsel for the revisionist
further submits that the Juvenile Justice
Board has exceeded its jurisdiction and no
power is vested to the Board to cancel
interim bail granted by the court of Session
Judge, Bulandshahar.
5 All. Wasif Vs. State of U.P. & Anr.
251

9. Learned counsel for the revisionist
further submits that the facts in brief which
arise the present issue is that an F.I.R.
bearing Case Crime No. 483 of 2016, under
Sections 419, 420, 467, 468, 471 I.P.C., P.S.
Khurja Nagar, District Bulandshahar was
lodged by the infomant-opposite party No.
2
against
unknown
person.
During
investigation eight persons were found
involved. The revisionist along with his
father (co-accused) and two other persons
who were also made co-accused in the
case, were arrested on 24.07.2016 and from
their joint possession Rs.5,50,000/- were
recovered.
After
being
arrested
on
24.07.2016 the revisionist moved his
regular Bail Application No. 2578 of 2016
before the court of learned Sessions Judge,
Bulandshahar, claiming therein that he was
juvenile on the date of incident. In support
of his claim for declaring him juvenile the
revisionist rests upon his High School
certificate of the year, 2017, issued by the
Central Board of Secondary Education, the
certificate issued by the Principal of
Hilman Public School, Agra, certifying his
study in Class-Xth, and copy of certificate
issued by Principal, Yugshakti Gayatri
School, Agra, certifying his education in
Class-VIIIth.

10. Learned counsel for the revisionist
further
submits
that
in
all
the
abovementioned documents the date of
birth of revisionist was consistent as
17.09.1999. It has further been argued that
apart from the aforesaid educational
certificates, a birth certificate issued by
Registrar, (Birth & Death), Agra, was also
appended
with
the
aforesaid
bail
application in which same date of birth of
the revisionist is mentioned.

11. Learned counsel for the revisionist
further submits that while hearing the bail
application and taking note of the claim of
juvenility of the revisionist the learned
Sessions Judge has referred the matter for
his age determination to the Juvenile
Justice Board with the finding that the
Board shall necessarily determine and
return the finding about the age of the
revisionist within 15 days.

12. Learned counsel for the revisionist
further submits that due to non functioning
of the Board no such age determination
could be made in next two months,
thereafter, the revisionist claimed interim
bail before the court of learned Sessions
Judge, who after considering the case of the
revisionist, vide its order dated 19.10.2016
granted interim bail to the revisionist till
the Board becomes functional.

13. Learned counsel for the revisionist
further submits that before Juvenile Justice
Board, Bulandshahar, the enquiry in terms
of Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015
(hereinafter referred to as, ''the Act, 2015')
began and has been registered as Misc.
Case No. 97 of 2016, and statement of
mother of the revisionist and the statements
of
Principals
of Schools
were
also
recorded, and nothing was remained to give
finding by the Board regarding age
determination of the revisionist, the said
enquiry has been remained pending for the
last
five
years,
whereas
the
entire
documentary evidence was produced by the
revisionist
before
the
Board
for
determining his age and to declare him as
juvenile.

14. Learned counsel for the revisionist
further submits that despite the revisionist
had been attending enquiry regularly for
the
last
five
years
except
some
adjournments on few dates sought by him,
252 INDIAN LAW REPORTS ALLAHABAD SERIES
surprisingly on 27.02.2020 the Board had
cancelled the interim bail granted by the
court of learned Sessions Judge, only on
the ground of absence of the accused
revisionist on that date and issued non
bailable warrant against him.

15. Learned counsel for the revisionist
further submits that cancelling the interim
bail by the Juvenile Justice Board, which
was granted by the court of learned
Sessions Judge, is completely without
jurisdiction vested in the Board under the
provisions of Act, 2015.

16. Learned counsel for the revisionist
further submits that the interim bail
cancellation order was challenged by the
revisionist before the court of learned
Additional Sessions Judge/ Special Judge,
(POCSO) Act, Bulandshahar in appeal,
which was also dismissed vide order dated
29.01.2022.
Both
the
orders
dated
27.02.2020 and 29.01.2022 are impugned
in this revision.

17. Learned counsel for the revisionist
further submits that the Juvenile Justice
Board as well as the appellate Court had
passed the impugned order in a mechanical
manner without considering the evidence
on record, and the Juvenile Justice Board
has
exceeded
its
jurisdiction
while
cancelling the interim bail order, and,
therefore, issuing non bailable warrant
against the revisionist, which is without
jurisdiction. The Juvenile Justice Board has
failed to discharge its duty as contemplated
under the law and delayed the proceeding
pending before them for deciding the issue
of question of declaration of juvenility of
the revisionist.

18. Learned A.G.A. has opposed the
submissions of the revisionist and submits
that the impugned order was rightly passed
by both the courts below.

19. I have considered the arguments
advanced by learned counsel for the parties
and perused the record.

20. Before this Court proceeds further
to assess the evidence and to consider and
decide the case on merits, it shall be
appropriate to examine the nature and
scope of enquiry as contemplated under the
law.

21. The Supreme Court of India in
Ashwani Kumar Saxena Vs. State of
M.P. in Criminal Appeal No. 1403 of
2021 (decided on 13.09.2012), examined
the scope of an enquiry expected from a
Court, the Juvenile Justice Board and the
Committee
in
the
light
of
earlier
judgements and was pleased to observe in
para-27 as under:-

"Section 7A, obliges the court
only
to
make
an
inquiry,
not
an
investigation or a trial, an inquiry not under
the Code of Criminal Procedure, but under
the J.J. Act. Criminal Courts, JJ Board,
Committees etc., we have noticed, proceed
as if they are conducting a trial, inquiry,
enquiry or investigation as per the Code.
Statute requires the Court or the Board only
to make an ''inquiry' and in what manner
that inquiry has to be conducted is provided
in JJ Rules. Few of the expressions used in
Section 7A and Rule 12 are of considerable
importance and a reference to them is
necessary to understand the true scope and
content of those provisions. Section 7A has
used the expression "court shall make an
inquiry", "take such evidence as may be
necessary" and "but not an affidavit". The
Court or the Board can accept as evidence
something more than an affidavit i.e. the
5 All. Wasif Vs. State of U.P. & Anr.
253
Court or the Board can accept documents,
certificates etc. as evidence need not be
oral evidence."

22. The Hon'ble Supreme Court held
that the enquiry on the point of juvenility
has nothing to do with the enquiry as
contemplated under other legislations and
gave an opinion in paras-32, 34 and 36 of
the aforesaid judgment of Ashwani Kumar
Saxena (supra) as below:

32. Consequently, the procedure
to be followed under the J.J. Act in
conducting an inquiry is the procedure laid
down in that statute itself i.e. Rule 12 of the
2007 Rules. We cannot import other
procedures laid down in the Code of
Criminal Procedure or any other enactment
while making an inquiry with regard to the
juvenility of a person, when the claim of
juvenility is raised before the court
exercising powers under section 7A of the
Act. Many of the cases, we have come
across, it is seen that the Criminal Courts
are still having the hangover of the
procedure of trial or inquiry under the Code
as if they are trying an offence under the
Penal laws forgetting the fact that the
specific procedure has been laid down in
section 7A read with Rule 12.

34. "Age determination inquiry"
contemplated under section 7A of the Act
r/w Rule 12 of the 2007 Rules enables the
court to seek evidence and in that process,
the court can obtain the matriculation or
equivalent certificates, if available. Only in
the absence of any matriculation or
equivalent certificates, the court need
obtain the date of birth certificate from the
school first attended other than a play
school.
Only
in
the
absence
of
matriculation or equivalent certificate or
the date of birth certificate from the school
first attended, the court need obtain the
birth certificate given by a corporation or a
municipal authority or a panchayat (not an
affidavit but certificates or documents). The
question of obtaining medical opinion from
a duly constituted Medical Board arises
only if the above mentioned documents are
unavailable. In case exact assessment of the
age cannot be done, then the court, for
reasons to be recorded, may, if considered
necessary, give the benefit to the child or
juvenile by considering his or her age on
lower side within the margin of one year.

36. Age determination inquiry
contemplated under the JJ Act and Rules
has nothing to do with an enquiry under
other legislations, like entry in service,
retirement, promotion etc. There may be
situations where the entry made in the
matriculation or equivalent certificates,
date of birth certificate from the school first
attended and even the birth certificate given
by a Corporation or a Municipal Authority
or a Panchayat may not be correct. But
Court,
J.J.
Board
or
a
Committee
functioning under the J.J. Act is not
expected to conduct such a roving enquiry
and to go behind those certificates to
examine
the
correctness
of
those
documents, kept during the normal course
of business. Only in cases where those
documents or certificates are found to be
fabricated or manipulated, the Court, the
J.J. Board or the Committee need to go for
medical report for age determination.

23. The Madhya Pradesh High Court
in Sanat Kumar Yadav Vs. State of M.P.
in Criminal Revision No. 3049 of 2016
(decided on 02.01.2017) held that the age
determination enquiry has to be conducted
within the purview of Section 9(2) of the
Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to
as the, ''Act, 2015') by seeking evidence
and by obtaining documents mentioned
254 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 94(2) of the Act, 2015 which
are comparable with Section 7-A of the
Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to
as the, ''Act, 2000) and the Rule 12(3) of
the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred
to as the, ''Rules, 2007'). In the above case
the Madhya Pradesh High Court referred to
judgment of the Hon'ble Supreme Court in
Akhilesh
Yadav
Vs.
Vishwanath
Chaturvedi, 2013(2) SCC 1, to stress the
point that the courts are not expected to
conduct
a
roving
enquiry
into
the
correctness of school certificate or the date
of birth certificate. Madhya Pradesh High
Court gave an opinion that school record
kept during the normal course of business
and whose authenticity or genuineness has
not been questioned can form the basis of
the determination of age of a juvenile.

24. In the case of Rishipal Singh
Solanki Vs. State of U.P. in Criminal
Appeal No. 1240 of 2021 (decided on
18.11.2021), the Hon'ble Supreme Court
held that where an application is filed
before the court claiming juvenility, the
provisions of sub Section 2 of Section 94 of
the Act, 2015 would have to be applied or
read along with sub Section 2 of Section 9
so as to seek the evidence for the purpose
of finding as regard the age. The Apex
Court also held that the burden of proving
is on the person raising such claim,
however, the documents mentioned in the
relevant rules of 2007 made under the Act,
2000 or the relevant Rules under Section
94(2) of the Act, 2015 shall be sufficient
for prima facie satisfaction of the court.
The Hon'ble Supreme Court held that such
presumption is not conclusive to prove the
age and is rebutable on the evidence lead
by opposite side. The Hon'ble Supreme
Court also cautioned that a hyper technical
approach should not be adopted when
evidence is adduced on behalf of the
accused in support of plea of juvenile.

25. Section 18 of the Act, 2015
provides that if it is found that any child
below the age of 16 years has committed a
heinous offence, then, notwithstanding
anything contrary contained in any other
law for the time being in force, may pass
orders like allowing child to go home after
advice or admonition or to direct the child
to participate in group counselling or
perform community service or may be
released on probation of good conduct or
he may be sent to special home for such
period not exceeding three years etc.
Perusal of provisions of the Act, 2015
establish that in no case the child below
sixteen years of age having committed an
heinous offence can be detained as convict
in regular jails. The punishment as
provided under the above provisions is
basically of reformative nature. The general
principles of care and protection of children
as given in Chapter 2 of J. J. Act also
include a principle of repatriation and
restoration of every child with his family at
the earliest.

26. Section 94 of the Act, 2015
provides presumption and determination of
age of juvenile and such presumption is not
conclusive to prove the case and is
rebutable on the evidence lead by the
aggrieved parties. Section 94 of the Ac,
2015 is reproduced herein below:

Presumption and determination
of age.-(1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child, the
5 All. Wasif Vs. State of U.P. & Anr.
255
Committee or the Board shall record such
observation stating the age of the child as
nearly as may be and proceed with the
inquiry under section 14 or section 36, as
the case may be, without waiting for further
confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake the process of age determination,
by seeking evidence by obtaining--

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person.

27. In view of the above facts and
submissions and considering the argument
as advanced on behalf of revisionist that
even assuming without admitting that the
revisionist had failed to appear on the date
fixed before the Juvenile Justice Board
during enquiry under Section 94 of the Act,
2015, then at most it would have rejected
the claim of juvenility. The Board had
failed to perform its obligatory duty
provided under the provisions of the Act,
2015 in not deciding the claim of juvenility
of revisionist for the last five years. Both
the Board as well as the appellate court
failed to notice that there is no provision
for cancellation of bail once granted to any
delinquent juvenile under the Act, 2015.

28. There appears force in the
arguments of the learned counsel for the
revisionist that the lower appellate court
has erred in recording the finding that it
was the accused-revisionist, who is creating
hurdles in the on going enquiry before the
Board regarding his age determination. The
said finding is perverse in as much as the
record of proceedings before the Board
reveals that all the evidence has been
collected by the Board in the year, 2016
itself, and therefore, there was no legal
impediment in deciding the issue of
determination of age of the revisionist and
the Board has waisted its time for
appearance of informant and the said
proceedings of enquiry had remained
pending over more than five years without
any fault of the revisionist and that too in
violation of the provisions of Act, 2015.
Moreover, once the educational documents
filed by the revisionist mention his date of
birth as 17.09.1999 consistently on all
levels, which was supported by the birth
certificate
issued
by
the
concerned
Registrar and there appears no contrary
evidence before the Board, the Board ought
to have decide the issue of juvenility of the
revisionist, and not deciding his claim of
juvenility the Board has caused great
prejudice to the revisionist who was made
to face trial with the other co-accused
persons before the trial court for the last
more than five years.
256 INDIAN LAW REPORTS ALLAHABAD SERIES

29. In view of the facts and
circumstances as discussed above and in
agreement with the law laid down by
Hon'ble Apex Court in the cases of
Ashwani
Kumar
Saxena
(supra),
Akhilesh Yadav (supra) and Rishipal
Singh Solanki (supra), as well as in view
of the law laid down by Hon'ble Madhya
Pradesh High Court in the case of Sanat
Kumar Yadav (supra), this revision
succeeds and is allowed. The impugned
order dated 27.02.2020 passed by Juvenile
Justice Board, Bulandshahar in Criminal
Misc. Case No. 97 of 2016, arising out of
Case Crime No. 483 of 2016, under
Sections 419, 420, 467, 471, 120-B I.P.C.,
Police Station Khurja Nagar, District
Bulandshahar and the impugned judgment
and order dated 29.01.2022 passed by
learned Additional Sessions Judge/ Special
Judge (POCSO Act), Bulandshahar in
Criminal Appeal No. 9 of 2022 are hereby
set aside and reversed.

30. It is further observed that the
Juvenile Justice Board has yet not decided
the claim of juvenility of the revisionist for
the last five years, being a peculiar case the
Juvenile Justice Board, Bulandshahar is
directed to decide the question of juvenility
of revisionist within a period of two months
from the date of production of certified
copy of this order, without granting any
unnecessary adjournments to either of the
parties and the case may be decided in
accordance with law.

31. It is also made clear that this
Court has not stayed the proceedings of the
trial and the trial court is at liberty to
proceed further with the case and decide
the same in accordance with law.
----------
(2022)05ILR A256
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Revision No. 763 of 2018

Arshiya Rizvi & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Nadeem Murtaza, Mohd. Mohsin

Counsel for the Opposite Parties:
Govt. Advocate, Purnendu Chakravarty

Criminal Law - Code of Criminal Procedure,
1973- Section 125 Cr.P.C. - The Muslim
Women (Protection of Rights on Divorce)
Act, 1986- Talaq ( Divorce)- Validity of-
Right to Maintenance- The proceeding
under Section 125 Cr.P.C. is available to
revisionist once she had taken resort to
proceeding under Section 125 Cr.P.C. - It is
admitted fact that revisionist no.1 and
opposite party no.2 are wife and husband
and
they
were
married
which
is
uncontroverted. The revisionist no.1 was
divorced but as per the judgment of Hon'ble
Supreme Court passed in the case of
Shayara Bano Vs Union of India and others
(Ministry of Women and Child Development
Secretary and others), (2017) 9 SCC 1
wherein it has been pronounced that if the
divorce is declared in one go and the Fatava
is issued, the same cannot be legal divorce
and it has no legal force. The divorce given
by
opposite
party
no.2
was
not
in
accordance with the Quoran therefore, the
divorce given by the opposite party no.2
was not in accordance with law. Quoran is
the only source in which the voice of Allah,
Mohammad Sahab have been recited in
Aayats. The divorce can be given in
accordance with the "verses" which are
envisaged in Quoran.

Where the divorce is not given according to the
provisions of the Quran, it has no legal force