S.No. 76

After Notice

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C)No. 2835/2022

Rubeena Jan & Anr.

…Petitioner(s)

Through: Mr. Jamsheed Bhat, Advocate

V/s

Union Territory of J&K & Ors.

…Respondent(s)

Through:

Coram:

HON’BLE MR. JUSTICE M A CHOWDHARY, JUDGE

ORDER

15.12.2022

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

out of their freewill 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.

3. Perusal of record annexed with writ petition reveals that

petitioners are major and have contracted marriage on 01.12.2022,

according to Muslim Personal Law, rites and customs.

4. When two adults, consensually, choose each other as life partners,

it is manifestation of their choice that is recognized under Articles

19 and 21 of the Constitution. Such right has sanction of

constitutional law and once that is recognized, 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.

5. 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 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 shall 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.

6. 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.

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

a direction to official respondents to provide adequate protection

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 &Ors AIR 2018 SC 1601, subject to the

condition that official respondents will check and see 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.

8. 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 fulfillment

of stipulations as envisaged under prevalent laws.

9. Disposed of along with connected CM.

(M A CHOWDHARY)

JUDGE

SRINAGAR

15.12.2022

Shaista