Back
2020 Supreme(J&K) 104
HIGH COURT OF JAMMU AND KASHMIR
Sanjay Kumar Gupta, J.
Nazia Khurshid & Anr. - Appellant
Versus
Union Territory Of J&K & Ors. - Respondent
WPC No.638 of 2020 CM No.1422 of 2020
Decided On : 26-02-2020
Mr. Ajaz Chowdhary, Advocate, for the Appellant; Mr. Aseem Sawhney, AAG for respondent Nos.1 to 4, for the Respondent
Headnote:
Constitution of India,1950 - Article 21 - Hindu Marriage Act - Inter-caste marriage – Arguments - Constrained by above situation both petitioners capable of understanding their well-being performed Nikah in accordance with Muslim Law - It is also stated in petition that parents of petitioner including maternal uncle of petitioner have also agreed to marriage of petitioners and father of petitioner due to illness could not attend marriage ceremony - Maternal uncle of petitioner including relatives of petitioner also attended marriage ceremony - After marriage petitioner joined company of petitioner as his legally wedded wife – Held, 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 the liberty which Constitution guarantees as fundamental right is ability of each individual to take decisions on matters central to pursuit of happiness - Matters of belief and faith including whether to believe are at 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 central aspects of identity - Law may regulate subject to constitutional compliance conditions of valid marriage as it may regulate situations in which marital tie can be ended or annulled - Petition disposed
JUDGMENT
1. The case set up in this petition is that both the petitioners are major and were having a love affair. They disclosed the fact of their love affair to their respective parents and also requested them for the solemnization of marriage, to which, parents of both the petitioners agreed but respondent Nos.5 to 8, who are brother-in-law and sisters of petitioner No.1, told petitioner No.2 that if in future even petitioner No.2 tried to see petitioner No.1 they will eliminate petitioner No.2.
2. Constrained by the above situation, both the petitioners capable of understanding their well-being performed Nikah on 02.02.2020 in accordance with Muslim Law. It is also stated in the petition that the parents of petitioner No.1 including the maternal uncle of petitioner No.1 have also agreed to the marriage of the petitioners and the father of petitioner No.1 due to illness could not attend the marriage ceremony. Maternal uncle of petitioner No.1 including the relatives of petitioner No.2 also attended the marriage ceremony. After marriage, petitioner No.1 joined the company of petitioner No.2 as his legally wedded wife. Thereafter, respondent Nos.5 to 8 and their relatives had made the lives of the petitioners miserable as both of them had married against the wishes of respondent Nos.5 to 8 and their relatives.
3. Respondent Nos.5 to 8 have also threatened the petitioners on phone and told the petitioner No.1 that after vacations when she will join the school, she will be eliminated and will not be allowed to visit her parental house and even she was not allowed to see her ailing father whereas her parents time and again requested petitioner No.1 to visit the house.
4. Petitioner No.1 is presently serving as Lecturer in Govt. Higher Secondary Jakhed Latti, District Udhampur and she has an apprehension that she will be eliminated by respondent Nos.5 to 8 and their relatives, who are against the marriage of petitioners. Petitioner No.1 has also filed a complaint against respondent Nos.5 to 8 before Addl. District Magistrate, Udhampur and the same has been transferred to Tehsildar Latti.
5. 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 performed Nikah on 02.02.2020 out of their own free will and consent, and without any force from anybody.
6. During the course of arguments, learned counsel for the petitioners has stated that the petitioners would be satisfied, if this petition is disposed of at this stage by directing the official respondents to provide adequate protection from the harassment at the hands of respondent No.5 to 8.
7. I have considered the submissions of learned counsel for the petitioners.
8. From bare perusal of the petition, it is evident that petition has been supported by an affidavit. Petitioners have placed on record photo-copies of Marks Card (10 th class) issued by the J&K State Board of School Education, wherein date of birth of petitioner Nos.1 & 2 is shown as 15.05.1988 & 05.01.1989 respectively. Nikah has been performed on 02.02.2020. So petitioners were major at the time of solemnization of marriage.
9. In similar circumstances where parties had entered into wedlock out of their own free will and volition, the Honble 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 husbands relatives.
17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united t
