S. No. 129

Supplimentary-1

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(C) No. 2868/2022

Rozi Jan & Anr.

…Petitioner(s)

Through: Mr. Rafiq Bhat, Advocate

V/s

Union Territory of J&K & Ors.

…Respondent(s)

Through: Ms. Asifa Padroo, AAG

Coram:

HON’BLE MR. JUSTICE M A CHOWDHARY, JUDGE

ORDER

16.12.2022

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

08.12.2022, 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 one9s 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 petitioners9 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

16.12.2022

Shaista