Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., observed that,
Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.
The writ petition was filed seeking a writ of mandamus directing the respondent concerned, not to arrest the petitioners under Sections 363, 366, 352, 506 of Penal Code, 1860 and Sections 7 and 8 POCSO Act.
Salamat Ansari and Priyanka Kharwar along with two others invoked the extraordinary jurisdiction of this Court for seeking quashment of an FIR under Sections 363, 366, 352, 506 IPC and Sections 5 and 6 of POCSO Act on the premise that the couple is of the age of majority, competent to contract a marriage, performed Nikah as per Muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam.
Further, it was submitted that the couple had been living together as husband and wife since last one year peacefully and happily. FIR was lodged by the father of petitioner 4 prompted by malice and mischief only with a view to bringing an end to marital ties, no offences are made out, hence FIR be quashed.
The mere fact that this petition is filed and supported by an affidavit of Priyanka Kharwar alleged victim, goes to show that she is voluntarily living with Salamat Ansari as a married couple.
Age of Priyanka Kharwar was not in dispute as she was reported to be around 21 years, therefore, petitioners 1 to 3 cannot be made accused of committing an offence under Sections 363 or 366 IPC, as the victim on her own left her home in order to live with Salamat Ansari. Similarly, as Priyanka Kharwar was not found to be juvenile, the offence under Sections 7/8 POCSO Act was not made out.
Hence, the allegations made were malafidely motivated with a view to implicate the family.
Bench stated that,
“Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year.”
Adding to the above, it was observed that the Courts and the Constitutional Courts, in particular, are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India.
Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.
Court stated that it fails to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have an objection to the relationship of two major individuals who out of their own free will are living together.
By relying on the Supreme Court decision of Shaffin Jahan v. Asokan K.M., (2018) 16 SCC 368, it was stated that the Supreme has consistently respected the liberty of an individual who has attained the age of majority.
Supreme Court in the decision of Shakti Vahini v. Union of India, (2018) 7 SCC 192, came down heavily on the perpetrators of “honour killings” which the Court found not only horrific and barbaric but also interfering with the right to choose a life partner and the dignity of an individual.
Bench stated that though the above observations were made in connection with ‘honour killings’ but the Court is of the firm view that the said principle would apply in the present context too where a relationship of two matured individuals is sought to be jeopardized at the whim and caprice of a parent.
Right to choose a partner irrespective of caste, creed or religion, is inhered under the right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.
Before parting with the present decision, Court reiterated that the FIR is being quashed primarily on the ground that no offences are made out, as two grown-up individuals have been living together for over a year of their own free will and choice.
Before concluding, however, the Court expressed that it expects the daughter to extend all due courtesy and respect to her family. [Salamat Ansari v. State of U.P., 2020 SCC OnLine All 1382, decided on 11-11-2020]
Advocates who appeared for the parties:
Counsel for the petitioner: Rakesh Kumar Mishra
Counsel for the Respondent: G.A., Ritesh Kumar Singh.