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In cases related to matrimonial disputes, a preliminary inquiry must be conducted before the FIR is filed: High Court of Jammu and Kashmir

In Matrimonial or family disputes, a preliminary enquiry must be conducted before the FIR is filed to determine whether a cognizable offence has been committed while safeguarding the rights of the complainant and accused. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Syed Rafie ul Akmal Andrabi v Irshad Ahmad Kamili & others [CRM(M) no.83/2020] pronounced on 25th August 2021.

The present petition was filed by Irshad Kamili for the quashment of FIR no. 12/2020 dated 5th March 2020 for cruelty towards a woman and criminal intimidation which are punishable under Section 498A and 506 of the Indian Penal Code. The petitioner’s nephew was living and working in Dubai long before his marriage to respondent no.2 on the 16th of July 2016. Post marriage, respondent no.2 also joined the petitioner’s nephew in Dubai but she soon returned to Srinagar where she gave birth to their son on June 10th 2017 and then allegedly returned to Dubai on 5th May 2018. The FIR filed by the respondents claim that the petitioner’s nephew had deserted his wife since April 2018, whereas the petitioners contend that they were living together in Dubai less than a month after this date. According to the petitioner neither he nor his nephew was aware of any kind of grievance that the respondents had until 3rd February 2020, when respondent no. 1 who is respondent no. 2’s father began to threaten the petitioner’s nephew and his relatives.

It is contended that until the dispute broke out between respondent no.1 and the petitioner’s nephew, respondent no. 2 had been on cordial terms with the petitioner’s nephew’s entire family. It is further submitted by the petitioner that the FIR accusing his nephew of cruelty and deserting respondent no.2 since 2018 was baseless and came out of the blue. Additionally it was pointed out that the FIR was not lodged by respondent no.2 who was the alleged victim, but by her father respondent no.1, who was not even a witness to any of the alleged offences making the FIR based on hearsay. The case of Lalita Kumari v State of Uttar Pradesh [(201) 2 SCC 1] was cited, where the Supreme Court of India gave out guidelines for the handling of family disputes and held that a preliminary enquiry was necessary to determine whether a cognizable offence has been committed or not.

Justice Vinod Chatterji Koul concluded in the judgement that “From the above quoted passage of the judgement passed in Lalita Kumari’s case, it is clear that preliminary inquiry is to be conducted, amongst others, in the cases relating to matrimonial or family disputes. When case in hand is looked into within the parameters of law laid down in Lalita Kumari’s case, it becomes self-evident that preliminary inquiry has not been conducted as was required to be conducted and petitioner has been unnecessarily arraigned as accused in impugned FIR. To this extent impugned FIR is liable to be quashed.”

Click here for the judgement

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