HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 2278/2022

1.

Khushbhu Kumari Sharma Daughter Of Shri Dilip Sharma,

Resident Of Road No. 17, Near Police Chauki, V.k.i Area,

Akedadoongar, Jaipur ( Dob 10-01-2004)

2.

Kush Gupta Son Of Shri Ramniwas Gupta, Resident Of 21,

Road No. 17, Aanand Vihar, Akhepura, Jaipur, Rajasthan

302013, ( Dob 16-06-1999)

----Petitioners

Versus

1.

State Of Rajasthan, Through P.p.

2.

Superintendent Of Police, Jaipur.

3.

S.h.o. Police Station Vishvakarman, Jaipur.

----Respondents

For Petitioner(s)

:

Ms. Tejashwi Sharma

For Respondent(s)

:

Mr. Prashant Sharma, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

12/05/2022

1.

This Petition has been filed under Section 482 Cr.P.C. for

protection to life and personal liberty of the petitioners.

2.

Petitioners are major and they are in live-in-relationship.

They apprehend violation of their right of privacy and personal

liberty at the hands of their relatives as they are not recognizing

their relation.

3.

In Navtej Singh Johar Vs. Union of India (Writ Petition (Cri.)

No.76 of 2016, decided on 06.09.2018), the Hon’ble Supreme

Court observed as under:-

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“64….The right to privacy enables an

individual to exercise his or her autonomy,

away from the glare of societal

expectations. The realisation of the human

personality is dependent on the autonomy

of an individual. In a liberal democracy,

recognition of the individual as an

autonomous person is an acknowledgment

of the State’s respect for the capacity of

the individual to make independent

choices. The right to privacy may be

construed to signify that not only are

certain acts no longer immoral, but that

there also exists an affirmative moral right

to do them.”

In the said judgment, Hon’ble Mr.

Justice Deepak Misra (then CJI), also

pointed out the duty of the Courts to be

guided by constitutional morality by

upholding the values enshrined within the

constitution and not succumbing to

societal morality.

The said relevant part of the

judgment as follows:

“119. The duty of the constitutional courts

is to adjudge the validity of law on well-

established principles, namely, legislative

competence or violations of fundamental

rights or of any other constitutional

provisions. At the same time, it is

expected from the courts as the final

arbiter of the Constitution to uphold the

cherished principles of the Constitution

and not to be remotely guided by

majoritarian view or popular perception.

The Court has to be guided by the

conception of constitutional morality and

not by the societal morality.

120. We may hasten to add here that in

the context of the issue at hand, when a

penal provision is challenged as being

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[CRLMP-2278/2022]

violative of the fundamental rights of a

section of the society, notwithstanding the

fact whether the said section of the

society is a minority or a majority, the

magna cum laude and creditable principle

of

constitutional

morality,

in

a

constitutional democracy like ours where

the rule of law prevails, must not be

allowed to be trampled by obscure notions

of social morality which have no legal

tenability. The concept of constitutional

morality would serve as an aid for the

Court to arrive at a just decision which

would be in consonance with the

constitutional rights of the citizens,

howsoever small that fragment of the

populace may be. The idea of number, in

this context, is meaningless; like zero on

the left side of any number.

121. In this regard, we have to

telescopically analyse social morality vis-

a-vis constitutional morality. It needs no

special emphasis to state that whenever

the constitutional courts come across a

situation of transgression or dereliction in

the sphere of fundamental righ