Point of Law: A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them

JUDGMENT :

1. The present Habeas Corpus Petition is filed by Petitioner no.1-wife through Petitioner no.2-husband, claiming that detenue-Petitioner no.1, Smt. Safia Sultana, who after converting to Hindu religion and renamed as Smt. Simran, married Petitioner no.2 as per Hindu rituals. However respondent No.4, her father, is not permitting her to live with her husband. They both are adults, duly married with their free will and desire to live together. Thus the custody of the detenue by her father is illegal. The Court directed for the presence of the detenue and her father. They both appeared in person, wherein, the Petitioner no.1 accepted the averments aforesaid and had shown her desire to live with her husband. The Respondent no.4-father of the detenue also fairly accepted that since she is an adult, has married with her choice and wanted to live with her husband, he also accepts her decision and wished both of them best for their future.

2. This matter could have come to an end at this stage, but, for the views expressed by the young couple while interacting with the Court on their personal appearance, the young couple expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the said Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice. Learned counsel for petitioners also stated that the situation may become more critical with notification of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, as the same prohibits conversion of religion by marriage to be unlawful. Learned counsel for petitioners further argues that looking into the changing pattern of the society, amendments made to the Special Marriage Act, 1954 as well as the law declared by the Supreme Court in the last around a decade with regard to privacy, liberty and freedom of choice of a person, provisions of Special Marriage Act, 1954, directing publication of a notice before marriage and inviting public objections, require a revisit to understand whether now with the said change they are to be treated as mandatory or directory in nature.

3. It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

4. Since, the issues raised by the petitioners and their counsels involves right of life and liberty of a large number of persons, therefore, this Court is duty bound to consider their submissions. Suffice would be to refer to the judgment of the Supreme Court in Shakti Vahini vs. Union of India and others, (2018) 7 SCC 192. The relevant paragraph reads:

“44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the constitutional courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement.”