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Judgment
The case set up in this petition is that both the petitioners are major and were having a love affair. They disclosed the fact of their love affair to
their respective parents and also requested them for the solemnization of marriage, to which, parents of both the petitioners agreed but respondent
Nos.5 to 8, who are brother-in-law and sisters of petitioner No.1, told petitioner No.2 that if in future even petitioner No.2 tried to see petitioner No.1
they will eliminate petitioner No.2.
Constrained by the above situation, both the petitioners capable of understanding their well-being performed Nikah on 02.02.2020 in accordance
with Muslim Law. It is also stated in the petition that the parents of petitioner No.1 including the maternal uncle of petitioner No.1 have also agreed to
the marriage of the petitioners and the father of petitioner No.1 due to illness could not attend the marriage ceremony. Maternal uncle of petitioner
No.1 including the relatives of petitioner No.2 also attended the marriage ceremony. After marriage, petitioner No.1 joined the company of petitioner
No.2 as his legally wedded wife. Thereafter, respondent Nos.5 to 8 and their relatives had made the lives of the petitioners miserable as both of them
had married against the wishes of respondent Nos.5 to 8 and their relatives.
Respondent Nos.5 to 8 have also threatened the petitioners on phone and told the petitioner No.1 that after vacations when she will join the school,
she will be eliminated and will not be allowed to visit her parental house and even she was not allowed to see her ailing father whereas her parents
time and again requested petitioner No.1 to visit the house.
Petitioner No.1 is presently serving as Lecturer in Govt. Higher Secondary Jakhed Latti, District Udhampur and she has an apprehension that she
will be eliminated by respondent Nos.5 to 8 and their relatives, who are against the marriage of petitioners. Petitioner No.1 has also filed a complaint
against respondent Nos.5 to 8 before Addl. District Magistrate, Udhampur and the same has been transferred to Tehsildar Latti.
The petitioners, in person, appeared before this court at the time of hearing of the petition along with their counsel. They have categorically stated in
the open Court that they have performed Nikah on 02.02.2020 out of their own free will and consent, and without any force from anybody.
During the course of arguments, learned counsel for the petitioners has stated that the petitioners would be satisfied, if this petition is disposed of at
this stage by directing the official respondents to provide adequate protection from the harassment at the hands of respondent No.5 to 8.
I have considered the submissions of learned counsel for the petitioners.
From bare perusal of the petition, it is evident that petition has been supported by an affidavit. Petitioners have placed on record photo-copies of
Marks Card (10th class) issued by the J&K State Board of School Education, wherein date of birth of petitioner Nos.1 & 2 is shown as 15.05.1988 &
05.01.1989 respectively. Nikah has been performed on 02.02.2020. So petitioners were major at the time of solemnization of marriage.
In similar circumstances where parties had entered into wedlock out of their own free will and volition, the Hon’ble Supreme Court in Lata
Singh v. State of UP and anr, AIR 2006 SC 2522 has held as under:
“14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a
major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the
Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her
husband’s relatives…………………………………….
……………………………………………………..
The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when
we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest
as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young
men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our
opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This
is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the
boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social
relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the
person who undergoes such inter caste or inter-religious marriage. We, therefore, direct that the administration/police authorities
throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter religious marriage with a
woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, any one who gives
such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal
proceedings by the police against such persons and further stern action is taken against such persons as provided by law.â€
In Shafin Jahan Vs. Asokan K. M. & Ors. reported in AIR 2018 SC 1933, it has also been held that:-
“20. Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of
human liberty:
“Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.â€
The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right
to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic
to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters
central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The
Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life
or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the
central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may
regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is
they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to
play in determining our choice of partners.
In Justice K S Puttaswamy v Union of India, 2017 (10) SCC 1, this Court in a decision of nine judges held that the ability to make
decisions on matters close to one’s life is an inviolable aspect of the human personality:
“The autonomy of the individual is the ability to make decisions on vital matters of concern to life… The intersection between
one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the
freedom of self-determination… The family, marriage, procreation and sexual orientation are all integral to the dignity of the
individual.â€
A Constitution Bench of this Court, in Common Cause (A Regd. Society) v Union of India, Writ Petition (Civil) No.215 of 2005, held:
“Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that
we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to
freely decide on innumerable matters of consequence and detail to our daily lives.â€
The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement
in determining a choice of partner to share intimacies within or outside marriage.â€
Mr. Aseem Sawhney, learned AAG, is appearing on behalf of respondent Nos. 1 to 4 and states that he has no objection, if the petition is disposed
of at this stage.
In view of the above, this petition is, accordingly, disposed of at this stage, with a direction that the official respondent Nos.1 to 4 shall ensure the
protection of lives and liberty of the petitioners and shall take appropriate steps strictly in accordance with the ratio of judgment (supra).