S. No. 78

Suppl. 1

HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 2845/2022

CM No. 7177/2022

Mohammad Saleem Shah &Anr.

… Petitioner(s)

Through: Mr Wani Parveez, Advocate.

Vs.

SSP Ganderbal &Ors.

...Respondent(s)

Through: None.

CORAM:HON’BLE MR. JUSTICE MA 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 08.06.2022 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 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.

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 fulfilment of stipulations as envisaged under

prevalent laws.

9. Disposed of along with connected CM.

;

(MA CHOWDHARY)

JUDGE

SRINAGAR

15.12.2022

Junaid