Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., while addressing the present matter made an observation that:

The alleged illegality of the marriage of the petitioners having been solemnized without the consent of the first wife is not to be gone into in the present proceedings which are only regarding providing of protection to the petitioners.

In the instant case, petitioners were both Muslim. Petitioners solemnized their marriage as per Muslim rites and rituals and a translated copy of the Nikahnama has been attached.

Marriage was solemnized against the wishes of respondents 4 to 7 who are the relatives of petitioner 2.

Petitioners Counsel submitted that the petitioners apprehended danger to their life at the hands of respondent 4 to 7.

Counsel for the petitioners submitted that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.

Bench noted that the girl s aged more than 18 years in the instant case. In the decision of Yunus Khan v. State of Haryana,  [2014(3) RCR (Criminal) 518] it was observed that the marriage of a Muslim girl is governed by the personal law of Muslims. Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla has also been reproduced in the said decision which article reads as under :

“195. Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”

Court held that both the petitioners in the instant were of marriageable age as envisaged by Muslim Law. The issue in hand was not the validity of the marriage but the fact that the petitioners were seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India.

Bench held that:

The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed.

Merely because the petitioners have got married against the wishes of their family members they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.

In view of the above discussion, Court disposed of the petition with a direction to Superintendent of Police to take the necessary action as per law.[Jakar v. State of Haryana,  2020 SCC OnLine P&H 2266, decided on 16-12-2020]


Advocates who appeared before the Court:

Vishal Garg Narwana, Advocate, for the petitioners.

Naveen Singh Panwar, DAG, Haryana.

Vipul Aggarwal, Advocate for respondent 4

Sunita Gupta, Advocate for Warisa (first wife of petitioner 1)

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed the revision petition filed against the rejection of bail to the accused. The revision petition was filed by the juvenile accused of murdering another child in the washroom of a private school in Gurugram.

Order passed by Principal Magistrate, Juvenile Justice board, Gurugram has been prayed to be set aside which dismissed the application for bail filed by petitioner as well as the Order passed by the Appellate Court, Gurugram.

Rupinder Khosla, Senior Counsel for the petitioner submitted that on perusal of the Order passed by lower Courts the language used by them does not entitle the petitioner concession of bail as the following was observed:

no misplaced sympathy can be shown to a juvenile who has perpetrated the offence like murder.

Further it was argued that, as per Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 a person who is apparently a child alleged to be in conflict with law, be notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person.

Senior counsel for the petitioner has further submitted that in the earlier petition, the CBI has admitted that it has no infrastructure to investigate the case. It is further argued that in the observation home there is overcrowding of children and the petitioner has already lost considerable weight, therefore, the petitioner be released on bail.

State’s Counsel submitted that as per the statement recorded by the probation officer, petitioner’s attitude towards the class was aggressive, he used to remain upset most of the time as he disclosed this fact to his music teacher; he was short-tempered and shouted over children; a low average student in studies; found under the influence of liquor.

Further CBI contended that the petitioner has on his own stated in the Supreme Court that he wants his application to be decided as an adult, there will be no applicability of Section 12 of the Act.

CBI also argued that proper hygiene condition are maintained in the protection home.

CBI adding to its contentions has also argued that considering the nature and gravity of the charge, severity of punishment in the event of conviction and the danger of accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with and danger of justice being thwarted by grant of bail.

Since petitioner has been facing allegation of committing heinous crime of a 7 year old minor child in a very barbaric manner by cutting his throat and then trying to demolish the evidence, no sympathy should be given.

Counsel for the complainant has also submitted that it is the petitioner’s side, who is not allowing the trial to conclude as they have challenged every order passed by the Courts below.

Bench found it appropriate to not grant bail for the following reasons:

  • Court is not inclined to grant any relief to the petitioner, in view of the order dated 28.02.2019 passed by the Hon’ble Supreme Court, directing that for deciding the bail application, the petitioner be treated as an “Adult”, therefore, there is little scope for this Court to find out whether the petitioner can be granted the relief under Section 12 of the Act.
  • Board and the Appellate Court have passed a detailed order declining the concession of bail to the petitioner in view of the proviso to Section 12(1) of the Act and this Court find no reason to form a different opinion.
  • arguments raised by senior counsel for the petitioner that the petitioner is not kept in a congenial atmosphere at Children’s Home and is facing medical problem, are not proved from the two reports of the Medical Board stating that the petitioner is not facing any serious problem/illness and rather it is noticed that the petitioner is gaining weight.
  • prosecution has cited certain witnesses, who are minors including the sister of the deceased and therefore, possibility of tampering the evidence, cannot be ruled out, at this stage in view of the totality of circumstances and the affidavit filed by the CBI.

Thus, in above view, revision petition was dismissed. [Bholu v. State of Haryana, 2020 SCC OnLine P&H 835 , decided on 30-06-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Sanjay Kumar Gupta, J. allowed a petition seeking protection, filed by a couple who performed inter-caste marriage.

The petitioners out of their free will and consent executed a marriage agreement duly attested by notary. They also married as per Hindu rites and customs at Arya Samaj Janipur, Jammu. As per the affidavit filed by them, it was evident that they were major at the time they solemnized the marriage. Father of the girl (Respondent 5) was vehemently opposed to their marriage; and he harassed and threatened to kill them. This led the petitioners to restrict their movement and being aggrieved, they filed the instant petition.

The Court relied on Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 368 to hold that right to marry a person of one’s choice is an integral aspect of Article 21 of the Constitution of India. Reliance was further placed on Lata Singh v. State of U.P., (2006) 5 SCC 475, wherein the Apex Court directed 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, anyone 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”.

In view of the above, this petition was allowed and official respondent’s 1 to 4 were directed to ensure adequate protection of lives and liberty of the petitioners.[Simran Choudhary v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 404, Order dated 01-05-2019]