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2019 Supreme(J&K) 347
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Rubana Naz and Anr. - Appellants
Versus
The Director General of Police, J&K, Police Headquarters and Ors. - Respondents
OWP No.29/2019 and IA No.01/2019
Decided On : 11-1-2019
For the Petitioner(s):Mr. Mohd. Shabir, Advocate
For the Respondent(s): Mr. Raman Sharma, Dy. AG
Headnote:
Constitution of India, 1950 - Article 21 - Conditions of valid marriage - Offence of harassment - Petitioners is that they are major and were having a love affair for the last more than one year and a half year - They disclosed the fact of their love affair to their respective parents and requested them for solemnization of marriage between the petitioners to which the parents of petitioner agreed but the parents of petitioner got annoyed with the petitioners - Even the parents of petitioner told petitioner that if in future even he tried to see their daughter they will eliminate him - Constrained by the above mentioned situation both the petitioners being major and capable of understanding their well-being – Held Right to marry person of one’s choice is integral to Article of Constitution - Constitution guarantees right to life - This right cannot be taken away except through law which is substantively and procedurally fair just and reasonable - Intrinsic to liberty which the Constitution guarantees as fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness - Matters of belief and faith including whether to believe are at the core of constitutional liberty - Constitution exists for believers as well as for agnostics - Constitution protects the ability of each individual to pursue way of life or faith to which she or he seeks to adhere - Matters of dress and of food of ideas and ideologies of love and partnership are within the central aspects of identity - The law may regulate subject to constitutional compliance conditions of a valid marriage as it may regulate the situations in which a marital tie can be ended or annulled - These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship - Society has no role to play in determining our choice of partners - Court in decision of nine judges that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality – Petition disposed
JUDGMENT :
1. The case of the petitioners is that they are major and were having a love affair for the last more than one year and a half year. They disclosed the fact of their love affair to their respective parents and requested them for solemnization of marriage between the petitioners to which the parents of petitioner No.2 agreed but the parents of petitioner No.1 got annoyed with the petitioners. Even the parents of petitioner No.1 told petitioner No.2 that if in future even he tried to see their daughter they will eliminate him. Constrained by the above mentioned situation both the petitioners being major and capable of understanding their well-being, on 03.01.2019 out of free will, pressure, coercion and undue influence from any quarter, performed Nikah Nama as per Muslim rites and customs before Qazi in a Mosque and Nikah Nama was also issued by Qazi as is evident from Annexure-A. They also executed a marriage agreement on 04.01.2019 as is evident from Annexure-B. Thereafter, petitioner No.1 joined the company of the petitioner No.2 as his legally wedded wife. After the solemnization of the marriage between the petitioners, respondent Nos.4 & 5 have made the lives of the petitioners miserable as both of them had married against their wishes. Even respondent Nos.4 & 5 many a times attempted to kill the petitioners and in this regard petitioner No.2 has also filed a complaint before the Court of 2nd Additional Munsiff Jammu, where the statements of the petitioners were recorded as is evident from Annexure-C.
2. It is further stated in the petition that the movements of the petitioners have been restricted in view of the continuous harassment and threat perception at the hands of respondent Nos.4 & 5 as they have openly declared that they will kill both the petitioners in order to satisfy their ego. The petitioners are innocent and have contracted the marriage with their own choice and are aggrieved of the unnecessary threats and harassment made by respondent Nos.4 & 5.
3. The petitioners, in person, appeared before this court at the time of hearing of the petition along with their counsel. They have categorically stated in the open Court that they have solemnized marriage with each other on 03.01.2019 and have also executed Marriage Agreement on 04.01.2019 with their own free will and consent, and without any force from anybody.
4. During the course of argument, learned counsel for the petitioners, has stated that the petitioners would be satisfied, if this petition is disposed of at this stage by directing official respondents to provide adequate protection from the harassment at the hands of respondent Nos.4 & 5.
5. I have considered the submissions of learned counsel for the petitioners.
6. From the perusal of petition, it is evident that this petition has been supported by an affidavit. There are photo-copies of Aadhar Cards of petitioner No.1 & 2 issued by Govt. of India, wherein the date of birth of petitioner No.1 is reflected as 02.01.2001; whereas the date of birth of petitioner No.2 is reflected as 01.06.1994. Marriage has been solemnized on 03.01.2019 as is evident from Annexures-A. So petitioners were major at the time of solemnization of their marriage.
7. In similar circumstances where parties had entered into wedlock of their own free will and volition, the Hon’ble Supreme Court in Lata Singh v. State of UP and Anr., AIR 2006 SC 2522 has held as under:—
“14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives.............................................................
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17. The caste system is a
