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: Allahabad High Court

Court No. 43 Case : Crl. Mis. Writ Petition No 113620 Petitioner : Respondent : Counsel for Petitioner : Counsel for Respondent : G.A. Ritesh Kumar Singh Salamat Ansari & 3 Others State of U.P. & 3 Others Rakesh Kumar Mishra Hon ble Pankaj Naqvi J Hon ble Vivek Agarwal J Per Pankaj Naqvi J Heard Sri Rakesh Kumar Mishra learned counsel for the petitioners Sri Ritesh Kumar Singh learned counsel for the informant and Sri Deepak Mishra the learned A.G.A. Learned AGA and the learned counsel for the informant do not propose to file any counter affidavit. With the consent of all the petition is being heard and finally decided under the rules of the This writ petition has been filed seeking a writ of mandamus directing the respondent concerned not to arrest the petitioners with a further prayer for quashing the impugned F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019 under Sections 363 366 352 506 I.P.C. and Section 7 8 POCSO Act Police Station Vishnupura District Kushi Nagar. 1. Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked the extraordinary jurisdiction of this Court for seeking quashment of an FIR dated 28.08.2019 as Case Crime No. 0199 of 2019 under Sections 363 366 352 506 IPC and Section 7 8 POCSO Act Police Station Vishnupura Kushinagar on the premise that the couple is of the age of majority competent to contract a marriage performed Nikah on 19.08.2019 as per muslim rites and rituals after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife since last one year peacefully and happily. It is finally submitted that the FIR lodged by father of petitioner no. 4 Priyanka Kharwar @ Alia is prompted by malice and mischief only with a view to bring an end to martial ties no offences are made out FIR be quashed 2. Learned AGA and learned counsel for the informant vehemently opposed the submissions on the premise that conversion per se for contracting a marriage is prohibited said marriage has no sanctity in law thus this Court should not exercise its extra ordinary jurisdiction in favour of such a couple. They relied on a judgment of a Learned Single Judge in Writ C No. 570614 decided on 16.12.2014 and its recent reiteration in Writ C No. 142820decided on 23.09.2020 3. There is no dispute that the couple has attained the age of majority as Priyanka Kharwar @ Alia s date of birth as per High School Certificateis 07.07.1999 which is an enlisted document in Juvenile Justice Act 2015 for determining the age of an individual coupled with the fact that the entry of the date of birth is not under challenge. The mere fact that this petition is filed and supported by an affidavit of Priyanka Kharwar @ Alia alleged victim goes to show that she is voluntarily living with Salamat Ansari as a 4. Once age of Priyanka Kharwar @ Alia is not in dispute as she is reported to be around 21 years petitioner nos. 1 to 3 cannot be made accused for committing an offence under Section 363 IPC or 366 IPC as victim on her own left her home in order to live with Salamat Ansari. Similarly once Priyanka Kharwar @ Alia is found not to be a juvenile the offence under Seciton 7 8 POCSO Act is also not made out. Allegations relating to offence under Section 352 506 IPC qua petitioner no. 2 and 3 prima facie in view of above background appear to be exaggerated and malafidely motivated with a view to implicate the family of petitioner no. 1 as petitioner no. 2 and 3 are mother and brother of petitioner no. 1 5. We do not see 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. 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. 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. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. We fail 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 objection to relationship of two major individuals who out of their own free will are living together. Decision of an individual who is of the age of majority to live with an individual of his her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his her fundamental right to life and personal liberty as it includes right to freedom of choice to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India 6. The Apex Court in Shafin Jahan v. Asokan K.M16 SCC 368 decided on April 9 2018 held as under 74. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Court. In Gian Devi v Superintendent Nari Niketan Delhi31 a three judge Bench observed that where an individual is over eighteen years of age no fetters could be placed on her choice on where to reside or about the person with whom she could stay 7. Whatever may be the date of birth of the petitioner the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter 75. The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major she or he is not under illegal confinement which the court finds to be a free expression of will that would conclude the exercise of the jurisdiction. In Girish v Radhamony a two judge Bench of this Court observed thus 3 In a habeas corpus petition all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution." 76. In Lata Singh v State of U.P Bench of two judges took judicial notice of the harassment threat and violence meted out to young women and men who marry outside their caste or faith. The court observed that our society is emerging through a crucial transformational period and the court cannot remain silent upon such matters of grave concern. In the view of the court 17 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 is not harassed by anyone nor subjected to threats or acts of violence and 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." this Court adverted to the social evil of honour killings as being but a reflection of a feudal mindset which is a slur on the nation 78. In a more recent decision of a three judge Bench in Soni Gerry v Gerry Douglas this Court dealt with a case where the daughter of the appellant and respondent who was a major had expressed a desire to reside in Kuwait where she was pursuing her education with her father This Court observed thus 9 She has without any hesitation clearly stated that she intends to go back to Kuwait to pursue her career. In such a situation we are of the considered opinion that as a major she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not. There may be ample reasons on her behalf to go back to her father in Kuwait but we are not concerned with her reasons. What she has stated before the Court that alone matters and that is the heart of the reasoning for this Court which keeps all controversies at bay 10. It needs no special emphasis to state that attaining the age of majority in an individual s life has its own significance. She He is entitled to make her his choice The courts cannot as long as the choice remains assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation 79. These principles emerge from a succession of judicial decisions. Fundamental to them is the judgment of a Constitution bench of this Court in Kanu Sanyal v District Magistrate Darjeeling 7. A perusal of the aforesaid judgment manifests that the Apex Court has consistently respected the liberty of an individual who has attained the age of majority 8. The Apex Court in Shakti Vahini Vs. Union of India7 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. The Apex Court held as under: 44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty subject to constitutionally valid provisions of law the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realization of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance. We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person.Act 1994(See : Voluntary Health Association of Punjab v. Union of India and others12 and Voluntary Health Association of Punjab v. Union of India and 47. The first argument deserves to be rejected without much discussion. Suffice it to say the same relates to the recognition of matrimonial status. If it is prohibited in law law shall take note of it when the courts are approached Similarly PCPNDT Act is a complete code. That apart the concern of this Court in spreading awareness to sustain sex ratio is not to go for sex determination and resultantly female foeticide. It has nothing to do with the institution of marriage."that even if a marriage is prohibited in law same shall be taken note of only when the courts are approached for recognition of such marriage which finds further corroboration in the case of NandaKumar vs. State of Kerala 16 SCC 602 which after relying upon Shafin Jahanheld that on attaining majority an individual is entitled to make his her choice which is pivotal and cannot be infringed by anyone. The relevant paragraphs are quoted “7. A neat submission which is made by the learned counsel for the appellants is that the High Court has adopted an approach which is not permissible in law by going into the validity of marriage. It is submitted that when Thushara is admittedly a major i.e. more than 18 years of age she has right to live wherever she wants to or move as per her choice. As she is not a minor daughter of respondent No. 4 “custody” of Thushara could not be entrusted to him. 8. Learned counsel for the appellants is right in his submission. Even the counsel for the State did not dispute the aforesaid position in law and in fact supported this submission of the learned counsel for the 12. The Court also emphasised due importance to the right of an adult person which the Constitution accords to an adult person as under 10 SCC 1 while deciding the issue of right to privacy held as under: 298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet dignity and freedom are inseparably inter twined each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood 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. When these guarantees intersect with gender they create a private space which protects all those elements which are crucial to gender identity The family marriage procreation and sexual orientation are all integral to the dignity of the individual. Above all the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence which lies within reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms Under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21 liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat the way one will dress the faith one will espouse and a myriad other matters on which autonomy and self determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion Under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate Article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting Dignity cannot exist without privacy. Both reside within the inalienable values of life liberty and freedom which the Constitution has recognised. 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 299. Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Yet it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others individuals are constantly engaged in behavioural patterns and in relationships impacting on the rest of society. Equally the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community 323. Privacy includes at its core the preservation of personal intimacies the sanctity of family life marriage procreation the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being 12. We now propose to deal with the judgment passed by learned Single Judge of this Court in Noor Jahanin Writ C No. 581214 l kiFk c ku fd k fd esjk uke fdju iq=h t a=h izlkn fuoklh taxyhiqj Fkkuk Hkkokuhxat ftyk fl)kFkZuxjA kph la0 1 us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 3&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjs firk th dk uke t a=h izlkn gS eSa taxyhiqj ftyk fl)kFkZuxj dh jgus okyh gwWA eSa b.Vj ehfM V rd i<+h gwWA eSa bykgkckn fnukWd 20 vDVwcj lu 2014 dks 5 cts lk adky vkbZ FkhA eSa bykgkckn vdsyh vkbZ FkhA esjk fudkg ukS cts fnu esa bykgkckn esa vCnqy jghe us ccyw mQZ bjQku ds lkFk djk fn k A g fudkg vdcj iqj ftyk bykgkckn esa djk k x k FkkA esjk keZ ifjorZu vCnqy jghe fu0 vdcjiqj ftyk bykgkckn esa djk k x k FkkA g keZ ifjroZu mUgksaus kknh djus ds fy djk k FkkA g keZ ifjorZu mUgksaus ccyw mQZ bjQku tks fd kph la[ k nks gS ds dgus ij djk k FkkA keZ ifjorZu izek.k i= tks fd bl kfpdk dk layXud rhu gS eq>s vCnqy jghe us vdcjiqj bykgkckn esa fn k FkkA bl dkxt ds fo"k esa eSa dqN ugha tkurh gwWA bLyke ds ckjs esa eSa dqN ugha tkurh gwWA dfFkr fudkgukek tks kfpdk dk layXud pkj gS esa fudkg dk LFkku unZ gkbZdksVZ bykgkckn vFkkZr~ gkbZdksVZ ds djhc fy[kk gqvk gSA gkW esjk fudkg ugha gqvkA C ku i o lqudj rLnhd fd k^^ Statement of Petitioner No.1in Writ C No. 625814 kph la0 1 lksue mQZ fiz adk us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 21&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjk uke lksue mQZ fiz adk gSA esjs firk th dk uke Hkxoku flag gSA og d d`"kd gSA og uxyk yks kbZ xkao eseq>s kn ugh gSA Statement of Petitioner No.1in Writ C No. 604914 kph la0&1 us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 13&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjk uke vk lk csxe mQZ vuhrk fo odekZ esjs firk th dk uke Jh f ko lju yky gSA oks dq.Mk izrkix< esa jgrs gSaA eSa ch0 0 rd i<+h gwWA esjk keZ ifjorZu eks0 lyhe us djok k Fkk A s keZ ifjorZu Jh lyeku ds lkFk kknh djokus ds fy djok k FkkA esjk fudkg lyeku us dpgjh] esa djok k A fudkg esa D k gqvk eq>s ekywe ugha A eq>s bLyke ds ckjs esa irk ugha gSA Statement of Petitioner no. 1(girl) in Writ C No. 570614 : uwjtgkW csxe mQZ vatyh feJk oa d vU cuke LVsV vkQ w0ih0 oa vU kph la0 1 vatyh feJk le{k U k ky l kiFk c ku fd k & Jh vf[kys k feJk esjs ikik dk uke gSA g nsofj k esa jgrs gSa eSa bUgha ds lkFk jgrh FkhA eSa b.Vj rd i<+h gqbZ gwWA eSa bLyke keZ ds ckjs esa dqN ugha tkurh gwWA fn0 23 flrEcj 2014 dks esjk keZ ifjorZu eks0 lyhe kph la0 2 ds kj ij djk k x k FkkA tc g keZ ifjorZu djk k x k rc eSa vyx dejs esa cSBh Fkh vkSj ckgj ekSyoh futke vgen cSBs Fks mlh le fudkg gks x k Fkk ekSyoh lkgc us djk k FkkA Jh eks0 lyhe lkM+h dk C kikj djrs gSaA kknh djus ds fy g keZ ifjorZu gqvk FkkA^^ Statement of Petitioner no. 1(girl) in Writ C No. 589114 : esjk uke lksuh mQZ lkfc k] iRuh lxhj vgen gSA esjs firk dk uke jes k pUnz gSA eSa bl kfpdk esa kfpuh la0 1 gwWA eSa 217 lEHky xsV pankSlh ftyk lEHky dh jgus okyh gwWA eS l kiFk c ku djrh gwW fd& esjs firk th esaFkk QSDVzh esa ukSdjh djrs gSaA eSa Lukrd dh Nk=k gwWA eSa bLyke keZ ds ckjs esa ugha tkurh gwWA eq>s kknh ds fy bLyke keZ dqcqy djok k x kA eq>s lxhj vgen kph la0 2 ds mifLFkfr esa bLyke keZ dqcqy djok k x kA g dqcwyukek 15 tqykbZ 2014 dks gqvkA lxhj vgen th us esjs lkFk fudkg 1 vxLr 2014 dks fdlh dkth ls djk kA mUgksaus g fudkg ekSgEen gqlSu ds kj ij djok kA eq>s ugha ekywe fd fudkgukek tks kfpdk layXud la0 2 gS ds vuqlkj fudkg 10 vxLr 2014 dks djok k x k A lxhj vgen kh ks dk dke etnwjh ij djrs gSaA^^ 13. We find from the judgement in Noor Jahan’s case that no doubt the ladies in question could not authenticate their alleged conversion as they were unable to show the knowledge regarding the basic tenets of Islam the writ court against the above background held that the alleged marriage was illegal as it was performed after a conversion which could not be justified in law. 14. We lest not forget that couples in Noor Jahan and other cognate petitions preferred a joint petition on the basis of alleged conversion of one of the partners. Once the alleged conversion was under clout the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years. To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown up individual but would also be a threat to the concept of unity in diversity. An individual on attaining majority is statutorily conferred a right to choose a partner which if denied would not only affect his her human right but also his her right to life and personal liberty guaranteed under Article 21 of the Constitution of India. We say so for the reason that irrespective of the conversion being under clout the mere fact that the couple was living together the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage in view of the provisions of Protection of Women from Domestic Violence Act 2005. 15. The judgment in Priyanshi followed Noor Jahan supra). None of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. We hold the judgments in Noor Jahan and Priyanshi as not laying good law 16. We before parting wish to reiterate that we are quashing the FIR primarily on the ground that no offences are made out as discussed above as also the fact that two grown up individuals are before us living together for over a year of their own free will and choice. The ultimate contention on behalf of the informant was that he be afforded visiting rights to meet his daughter. Once petitioner no. 4 has attained majority then it is her choice as to whom she would like to meet. We however expect the daughter to extend all due courtseys and respect to her family 17. We clarify that while deciding this petition we have not commented upon the validity of alleged marriage conversion. 18. In view of above discussion the writ petition succeeds and is allowed. The F.I.R. dated 25.08.2019 registered as Case Crime No 01919 under Sections 363 366 352 506 IPC and Section 7 8 POCSO Act Police Station Vishunpura District Kushi Nagar as well as all consequential proceedings are hereby quashed. Order Date : 11.11.2020 (Vivek Agarwal J)(Pankaj Naqvi J

Summary: An individual on attaining majority has statutorily conferred a right to choose a partner, which if denied would not only affect his/her human right but also his/her right to life and personal liberty, guaranteed under Article 21 of the Constitution of India. We say so for the reason that irrespective of the conversion being under clout, the mere fact that the couple was living together, the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage, in view of the provisions of Protection of Women from Domestic Violence Act, 2005 was held by the Allahabad High Court in case of Salamat Ansari and Ors. Vs State of U.P [Crl. Mis. Writ Petition No- 11367 of 2020] by the bench comprising of Justice Pankaj Naqvi and Justice Vivek Agarwal. In the present case, Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked the extraordinary jurisdiction of this Court for seeking quashing of an FIR under Sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act on the ground that the couple is of the age of majority, competent to contract a marriage, performed Nikah on 19.08.2019 as per Muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife for last one year peacefully and happily. It is finally submitted that the FIR lodged by the father of the petitioner, Priyanka Kharwar is prompted by malice and mischief only with a view to bringing an end to martial ties, no offences are made out, FIR is quashed. The Court held that, the judgment in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another, Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others, is laying a good law as none of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. The Court relied on Shafin Jahan v. Asokan K.M (2018). “Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.” The 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. The Apex Court in KS Puttaswamy vs Union of India (2017) while deciding the issue of the right to privacy. Click here to read the judgement