BARKATI Vs. STATE

JUDGEMENT

(1.) ON 10-12-2006 Sultan Ali submitted a petition to this Court to the effect that on 30th Phagon 2006 the Special police staff raided his house in his absence and illegally carried away his wife Mst. Barkati against her will and kept her in detentidn in the Refugee Camp Mohalla Ustad Jammu. A prayer was made in the petition that the person of Mst. Barkati be removed from the custody of the Camp officer and brought before this court and set at liberty.

(2.) A notice was issued by me to the officer-in-Charge Muslim Refugee Camp Mohalla Ustad Jammu to produce before me Mst. Barkati daughter of Shukur Din. Barkati appeared before me on 15th Baisakh, 2007 along with Mrs. Dhar who describes herself as in charge of the Receiving Centres. I took down her statement. In her statement Barkati deposed that Sultan Ali was her husband to whom she was lawfully married. She further stated that she lived with Sultan Ali as wife for a period of two months when she was forcibly separated from him. She has categorically declared her unwillingness to go to Pakistan and has expressed her firm resolve to reside in the Jammu and Kashmir State along with her husband Sultan Ali. It was also stated by her that she has attained majority and was free to go anywhere she pleased.

(3.) MRS Dhar has produced the Act of the Indian Legislature before me today. This Act is called the Abducted Persons' Recovery and Restoration Act of 1949. This Act has a slight history behind it. On 23.9.1948 (as modified on 11.11.1948) an inter-Dominion agreement between India and Pakistan was made for the recovery and restoration of the abducted women in the two dominions. In implementation of this agreement the Indian legislature passed an Act known as the Abducted Persons' Recovery and Restoration Act of 1949. It received the assent of the Governor General on 28th December 1949. This Act makes provision for the establishment of camps, powers of the police to recover abducted persons and maintenance of discipline in Camps etc. According to Section 8 of this Act the detention of any abducted person in a camp in accordance with the provisions of this Act shall be lawful and cannot be called into question in any court; so far so good; but the question is : can this Act apply to this State? This aspect of the case requires some discussion. In the Union List this matter (Entering into treaties, agreements with foreign countries and implementing of treaties agreements and conventions with foreign countries) is covered by No. 14 and this has been included in the List of matters which under Article 370 of the Constitution of India the President in consultation with the Government of Jammu and Kashmir has declared to correspond to matters specified in the instrument of Accession governing the accession of the State (to the Dominion of India, and with respect to which the Indian Legislature can make laws for this State.) (Vide Section 2 of the Constitution (Application to Jammu and Kashmir) O. 1950). Now the Indian Legislature, as already stated, has passed an Act (Abducted Persons' Recovery and Restoration Act), but according to Section 1 Sub-S (2) its extension has been limited to the United Provinces (Uttar Pradesh), the provinces of East Punjab States Union and the United State of Rajasthan. The State of Jammu and Kashmir does not figure in this list. It is therefore obvious that the Act known as the Abducted Persons' Recovery and Restoration Act of 1949 has no application so far as this State is concerned.