HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…….

WP(C) No. 1242/2022

CM No. 3052/2022

Kulsum Bano & Anr.

……. Petitioner(s)

Through: Mr. Nadeem Gull, Advocate

Versus

Union Territory of J&K & Ors.

……Respondent(s)

Through: Ms. Insha Rashid, GA

CORAM: HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE

ORDER

17.06.2022

1. Petitioners claim that they, being major, have contracted marriage out of

their free will and are living as husband and wife, but are apprehensive to be

subjected to physical violence and harassment at hands of their relatives, as

petitioners have contracted marriage against their wishes. Petitioners,

therefore, seek protection and security cover from respondents.

2. Heard and perused the file. Perusal of record annexed with writ petition

reveals that petitioners are major and have contracted marriage according to

Muslim Personal Law, rites and customs.

3. When two adults consensually choose each other as life partners, it is

manifestation of their choice that is recognised under Articles 19 and 21 of

the Constitution. Such right has sanction of constitutional law and once that

is recognised, said right needs to be protected and it cannot succumb to

conception of class honour or group thinking. Consent of family or

community or clan is not necessary once two adult individuals agree to

enter into wedlock and their consent has to be piously given primacy. The

concept of liberty has to be weighed and tested on the touchstone of

constitutional sensitivity, protection and values it stands for.

4. 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 dignified existence of

an individual has an inseparable association with liberty. Thus, it is

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WP(C) No. 1242/2022

emphatically clear that life and liberty sans dignity and choice is a

phenomenon that allows hollowness to enter into the constitutional

recognition of identity of a person. The choice of an individual is an

extricable part of dignity, for dignity cannot be thought of where there is

erosion of choice and no one should be permitted to interfere in the

fructification of the said choice. If right to express one’s own choice is

obstructed, it would be extremely difficult to think of dignity in its

sanctified completeness. When two adults marry out of their volition, they

choose their path; they consummate their relationship; they feel that it is

their goal and they have the right to do so. And it can unequivocally be

stated that they have the right and any infringement of the said right is a

constitutional violation.

5. Keeping in view the prayer made, writ petition is disposed of with a

direction to official respondents to provide adequate security cover to

petitioners and act in accordance with the law laid down by the Supreme

Court in Lata Singh v. State of U. P. (2006) 5 SCC 475, and Shakti Vahini

v. Union of India and others AIR 2018 SC 1601, subject to the condition

that official respondents shall examine as to whether parties are major and

the marriage has been solemnized in strict accordance with prevalent laws,

and if there is an FIR against any of the petitioner(s), the police may go

ahead with the investigation under rules.

6. Needless to say that disposal of instant petition does not authenticate

petitioners’ marriage or their age/majority to enter into marriage, which,

however, is otherwise subject to fulfilment of stipulations as envisaged

under prevalent laws.

7. Disposed of along with connected CM.

(M. A. Chowdhary)

Judge

Srinagar

17.06.2022.

“Ab. Rashid”