Allowed

Smt. Rekha @ Asma Bano and Another v. State of U.P. and 3 Others

Allahabad HC14 Sept 2021CRLP/6458/2021

Case brief

AI extract

What is this about?

The Court allowed a petition seeking quashing of an FIR under Sections 363, 366 IPC and 3(2)(v) of SC/ST Act. It held that where a major girl voluntarily leaves her home to live with a person of her choice, no offence is made out, safeguarding the right to life and liberty under Article 21.

What did the court decide?

The First Information Report dated 23.6.2021, Case Crime No. 52 of 2021, under Sections 363, 366 IPC and 3(2)(v) of SC/ST Act and all consequential proceedings are quashed.

Smt. Rekha @ Asma Bano and Another Vs State of… — Matrimonial and Divorce | Allahabad HC (2021)

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Court No. - 44

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Case :- CRIMINAL MISC. WRIT PETITION No. - 6458 of 2021

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Petitioner :- Smt. Rekha @ Asma Bano And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bed Kant Mishra Counsel for Respondent :- G.A.,Sanjay Rajpoot

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Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.

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Heard the learned counsel for the petitioners and Sri Sanjay Rajpoot, learned counsel for the respondent no. 4 and perused the record.

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By means of the present petition, the petitioners herein are seeking for quashing of the first information report dated 23.6.2021 registered as Case Crime No. 52 of 2021, under Section 363, 366 IPC and 3(2)(v) of SC/ST Act, 1989 (amended 2015), P.S.- Narwal, District- Kanpur Nagar.

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The copy of High School Mark-sheet of the victim - girl has been appended at page '27' of the paper book. The date of birth of the victim -girl is not disputed by the learned counsel for the respondent no. 4.

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Placing the High School mark-sheet of the victim girl issued in the year 2017, it is submitted by the learned counsel for the petitioners that the petitioner no.1 is a major girl aged about 20 years on the date of incident.

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The present petition has been filed with the declaration, jointly by both the petitioners no.1 & 2 that the petitioner no.1 had left her paternal home out of her own sweet will and being a major girl, she is free to take her choice to embrace Islam and perform marriage with the petitioner no.2. The respondent no.4 is against the marriage of the petitioners.

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The present petition, however, has been filed on the assertion that no offence under Section 363, 366 IPC and 3(2)(v) of SC/ST Act is made out as the petitioner no.1 is a major girl. The entire criminal case lodged by the respondent no.4 is nothing but an abuse of the process of the law.

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Learned counsel for the respondent no. 4/complainant, however, says that the alleged marriage solemnised by the petitioners is illegal, inasmuch as, the conversion of the petitioner no.1 to

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Islam cannot be approved of being in violation of the provisions of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. The conversion for contracting the marriage is prohibited and as such the marriage has no sanctity in law. The court, therefore, may not invoke its jurisdiction in favour of the petitioners whose marriage cannot have sanctity in the eye of the law.

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As regards the age of the victim girl, as indicated in the High School mark-sheet appended with the writ petition, no dispute has been raised by the counsel for the complainant. It is, thus, clear that both the petitioners are major. The fact that the present writ petition has been filed with the declaration by the victim girl and that she is living voluntarily in the company of the petitioner no.2, is supported with the signature of the victim girl on the Vakalatnama. Once the age of the victim girl is not in dispute, the petitioners no.1 & 2 cannot be made accused for committing offence under Section 363, 366 IPC and 3(2)(v) SC/ST Act as victim had left her home in order to live with the petitioner no.2.

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We make it clear that the question in the present petition is not about the validity of marriage of two individuals i.e. petitioners no.1 & 2. Rather, the issue is about the life and liberty of them in choosing a partner or their right to freedom of choice as to with whom they would like to spend their life.

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A Division Bench of this Court in the case of Salamat Ansari & others vs. State of UP & others reported in 2020 SCC Online All 1382 while dealing with the similar question has observed that the right to chose 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 guaranteed under Article 21 of the Constitution of India. It was further observed that an individual on attaining majority, is statutorily conferred with the 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.

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The observations of the Division Bench in paragraph '8' of the said decision are pertinent to be quoted hereunder:

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"8. 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

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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.? "

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In view of the above discussion, we are of the considered view that from the first information report no offence under Section 363, 366 IPC and 3(2)(v) of SC/ST Act is made out, inasmuch as, both the petitioners are major and the petitioner no.1 has come up with the categorical stand that she had left her home with the petitioner no.2 willingly and is living with him as a married woman.

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In view of the above, the writ petition succeeds and is allowed. The first information report dated 23.6.2021 registered as Case Crime No. 52 of 2021, under Sections 363, 366 IPC and 3(2)(v) of SC/ST Act P.S.- Narwal, District- Kanpur Nagar as well as all consequential proceedings are hereby quashed.

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We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners or conversion of the petitioner no.1.

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Order Date :- 14.9.2021 Gss

Smt. Rekha @ Asma Bano and Another v. State of U.P. and 3 Others

Case brief

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Smt. Rekha @ Asma Bano and Another v. State of U.P. and 3 Others

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