Rajasthan High Court
Case BriefsHigh Courts

Rajasthan High Court: Sameer Jain J. granted police protection and directed the State authorities to charge an appropriate fee from the couple seeking police protection before the Court, if the income is found to be more than the taxable income under the Income Tax Act, 1961.

A couple got married which was not approved by their respective family and relatives and apprehending threat to life, they filed for police protection at their residence and place of work.

The Court noted that the State has a duty to protect the life and liberty of the citizens. The petitioners are adult citizens who have a right to choose their partners. Thus, society cannot determine how individuals live their lives, especially when they are major, irrespective of the fact that the relation between two major individuals may be termed as unsocial. Thus, life and personal liberty of the individuals has to be protected except according to procedure established by law, as mandated by Article 21 of the Constitution of India.

It was also noted that as per Section 29 of the Rajasthan Police Act, 2007 every police officer is duty bound to protect the life and liberty of the citizens.

The Court held “It would be the duty of the said authority to ensure the safety and security of the petitioners, for which he may take such suitable measures as found necessary in accordance with law.”

The Court observed that if the petitioner’s income is more than the taxable income under the Income Tax Act, 1961, the Superintendent of Police after considering the financial aspect may charge appropriate fee from them as specified in law if financial hardship is not the case.

[Pooja Gurjar v. State of Rajasthan, 2022 SCC OnLine Raj 1059, decided on 21-06-2022]


Advocates who appeared in this case :

Bharat Yadav, Advocate, for the Petitioner;

Ghanshyam Singh Rathore, Advocate, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with a matter regarding protection to live-in relationship, Anoop Chitkara, J., held that, every person in the territory of India has an inherent and indefeasible fundamental right to life flowing from Article 21 of the Constitution of India and the State is duty-bound to protect life.

Fearing for their lives and liberty at the hands of the private respondents, petitioners who are in live-in relationship approached this Court seeking protection through the State by invoking fundamental rights of life guaranteed under Article 21 of the Constitution of India.

Petitioner’s counsel submitted that petitioner 2 was a married woman and had voluntarily gone to the company of petitioner 1. Petitioners were facing grave danger from the private respondents and their lives be protected even though petitioner 2 was married to respondent 4.

High Court remarked that,

“…times are changing fast, even in those lands that were left behind and stuck with the old ethos and conservative social milieu.”

Bench added that,

“We are governed by the rule of law and follow the Constitutional dharma. In the ever-evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual’s life above all.”

Further, the Court stated that if the allegations of apprehension of threat to their lives turn out to be true, it might lead to an irreversible loss.

Stating that this Court will not adjudicate on the validity of petitioner’s marriage or her decision of cohabiting with petitioner 1 but adhering to its fundamental duty of guarding their lives, Bench held that it shall be appropriate that the Superintendent of Police, SHO concerned or any officer to whom such powers have been delegated or have been authorized in this regard, provide appropriate protection to the petitioners.

With regard to the protection, High Court held that it is subject to the stringent condition that from the time such protection is given, the petitioners shall not go outside the boundaries of the place of their residence, except for medical necessities, to buy household necessities, and for bereavements in the families of the persons who are close to them, as it would save them from apprehended risk.

Lastly, the Bench clarified that the present order is not a blanket bail in any FIR.

In view of the above, petition was allowed. [Jai Narain v. State of Punjab, 2022 SCC OnLine P&H 584, decided on 18-2-2022]


Advocates before the Court:

Mr. Vishneet Singh Kathpal, Advocate for the petitioners.

Mr. Rehatbir Singh Mann, DAG, Punjab.

Case BriefsHigh Courts

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 1954, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or NOT to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.”

In view of the Court, the interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”[Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19, decided on 12-01-2021]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: In a peculiar case of illegal detention of a woman who happens to be the petitioner’s wife, Harinder Singh Sidhu, J., ordered for her release and for her to be reunited with the petitioner.

The instant habeas corpus petition has been filed under Articles 226/227 of Constitution of India by the petitioner (husband of detenue) seeking relief. The factual matrix in the present case is that petitioner had solemnized marriage with the detenue on 27-08-2020 at Sirsa. Respondents 4 to 7, detenue’s parents are relatives were against the marriage and had made their disapproval evident. During a post-marriage visit, detenue’s kin took her away with the assurance that they would drop her back at the house of the petitioner in a short while. Since then, the detenue has not returned and she has been illegally detained against her will by her family.

The Court after taking cognizance of the said matter directed the Superintendent of Police, District Sirsa to ensure the presence of the alleged detenue in the Court after which the detenue appeared in the Court accompanied by SHO/SI Sunita, Police Station Bada Gudha, District Sirsa. On being asked, the detenue stated in the Court that she has married the petitioner out of her own free will and that she is a major and wants to join the petitioner at her matrimonial home.

After careful consideration, the Court directed the SHO/SI to take the detenue and lodge her in the protection home at Sirsa and on a subsequent day, the petitioner would present himself at Police Station Bada Gudha, District Sirsa where he would be reunited with the detenue.

In view of the above, the petition has been disposed of.[Pass Ram v. State of Haryana, 2020 SCC OnLine P&H 1744, decided on 20-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Sonia Gokani and N.V. Anjaria, JJ.,  while addressing a matter for protection of a couple, stated that

By way of social policing, attempt can also be made by the officer concerned who is investigating the earlier complaint of the petitioner filed against family members of the corpus and to make an attempt to bring an amicable solution between the families.

In the present matter, Corpus was produced through Video Conferencing at District Court, Palanpur.

Additional District Judge, Robin Mogera helped the Court in specifying the girl-corpus and further the Bench noticed that the corpus expressed her desire before the ADJ to join her husband. She also confirmed that she was carrying foetus in her womb of the petitioner.

Court had protected both the petitioner and the corpus who had married against the wish and will of the girl’s parents.

Even during the  video conference it is quite visible that girl’s mother tried to emotionally blackmail by the stating that she may have to end her life if corpus continues to express her desire to join her husband.

Court requested the ADJ to make an attempt to bring an amicable solution and if he deems fit, he may refer the matter to the Mediation Center.

Protection to the couple shall continue for 4 months, Thereafter the matter shall be posted before the Superintendent of Police, Palanpur, who shall decide as to whether to continue such protection or not.

Caste system in the country is making it more and more difficult for the young people to decide their own life partner and the rigidity in the minds of adults in the family becomes the serious cause of division of human relationship.

Further the Court added that it gets difficult for the administration to handle social and emotional upheaval which eventually turn into legal battleground. Petition was disposed of in the above-view. [Niteshkumar Mulchandbhai Prajapati v. State of Gujarat, 2020 SCC OnLine Guj 897 , decided on 17-06-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of Sanjay Kumar Gupta, J. directed the police Authorities to provide protection to life and liberty to a young married couple in light of threats received from parents of the girl.

The petitioner, both major, were in love with each other. They wanted to marry, parents of the boy were ready, however, girl’s parents were not. They even threatened the boy to do away with his life if he meets their daughter again. Nonetheless, being major and understanding their well-being, the petitioners contracted marriage as per Muslim Personal Law. Since the marriage between the petitioners was not acceptable to Respondents 4 to 6, they gave an open threat to kill both petitioners. Movement of the petitioners had thereby been restricted. Fearing their life and property, the petitioners approached the High Court.

The High Court gave due consideration to the facts of the case and found that both the petitioners were major and contracted marriage out if their free will. The Court placed reliance on the Supreme Court decision in Lata Singh v.  State of U.P.,(2006) 5 SCC 475,  wherein the Hon’ble Court held that a major girl is free to marry anyone she likes or live with anyone she likes. Following the ratio of the said case, the High Court directed the police Authorities to take appropriate steps for providing protection to the life and property of the petitioners. The petition was disposed of accordingly. [Kaneez Akhter v.  Director General of Police, 2018 SCC OnLine J&K 318, dated 30-05-2018]