Allowed

Smt. Saraswati Devi and Another v. State of U.P. and 3 Others

Allahabad HC6 Oct 2023WRIC/29906/2023

Case brief

AI extract

What is this about?

In a writ petition, the court directed respondents not to interfere with the petitioners' peaceful cohabitation based on liberty under personal autonomy. The court affirmed their right to live together and granted protection through the Superintendent of Police without adjudicating the marriage's validity.

What did the court decide?

Directed respondents not to interfere in the petitioners' peaceful living; directed Superintendent of Police to provide immediate protection on production of this order.

Smt. Saraswati Devi and Another Vs… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:193130

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Court No. - 82

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Case :- WRIT - C No. - 29906 of 2023

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Petitioner :- Smt. Saraswati Devi And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Awadhesh Kumar Counsel for Respondent :- C.S.C.

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Hon'ble Mohd. Azhar Husain Idrisi,J.

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Heard Sri Awadesh Kumar, learned counsel for the petitioners and the learned Standing Counsel for the State. Perused the record.

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In view of the order proposed to be passed, there is no need to issue notice to private respondent. With the consent of learned counsel appearing for the parties, this writ petition is being disposed of finally at this stage in terms of the Rules of the Court.

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The petitioners namely, Smt. Sarswati Devi (petitioner no. 1) and Shusheel Kumar (petitioner no. 2) have preferred the present petition under Article 226 of the Constitution of India, for direction upon respondents not to interfere their live-inrelationship and also far the protection of their lives and liberty. The petitioners, have sought following main relief:

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"(i) Issue a writ order or direction in the nature of mandamus commanding and directing the respondent no. 2 and 3 to provide protection to the petitioners couples and restrain respondent no. 4 and his agents/ family members not to interfere in their peaceful matrimonial life."

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Petitioners have filed a joint afÏdavit in support of the averments made by them in the petition.

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The learned counsel for the petitioners submitted that as averred in the joint afÏdavit, they are major. As per Adhar Card of petitioner no. 1 her date of birth is 11.03.2005. Copy of the Adhar cards has been annexed to the petition as annexure. Learned counsel for the petitioners have next submitted that this view of the matter petitioner no.-1 is a major girl aged about 19 years. It is also contended that as per Adhar Card, date of birth of petitioner no.-2 is 01.01.1991. , so he is also major, aged about 32 years.

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It is further submitted that petitioner no. 1- Smt. Sarswati Devi has herself left her parental house along with petitioner no.2 Shusheel Kumar and they are living as husband and wife.

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With their own choice and free will. It is also submitted that they are newly married couple. Who has solemnized their marriage in Tambeshwar Tample, Fatehpur As per hindu Customs and rites. They have applied for their marriage bearing application ID No. 202312900197 before registrar marriages Khaga Fatehpur on 24.08.2023. The copy of the said registration along with receipt of the fees deposited in this behalf has been annexed to the petition. It is also contended that they are I love with each other as they are acquainted with each other . Nanihal of petitioner no 2 is situated in the village of petitioner no 1. They wish to marry out of their free will and consent on 21.08.2023. Petitioner no. 1 left her house with petitioner no 2 of her own will and solemnized the above stated marriage. It is their first marriage an neither of them have married any one else.

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Learned counsel for the petitioners has further submitted that respondent no. 4 is not happy with the living of petitioners as he wants to marry his daughter (petitioner no. 1) according to his own choice, which was objected by petitioner no. 1 and continued to live as husband and wife with petitioner no. 2. On this score, the respondent no. 4 along with his associates is trying to humiliate and disturb the happy marital life of the petitioners and threatened to lodge the FIR against them, however till date no FIR has been lodged against them. Thus they have apprehension that private respondent no. 4 can eliminate them for the honer of their family and even he can resort to physical violence. It is also stated that petitioners are different caste. She has step mother, step brother and step sister. Thus, they are not agree to their marriage. They are threatening dire consequences and fear of malices prosecution and harassment and are constant threat and danger of life of the petitioner no. 2. So they moved an application to S.P. Fatehpur on 24.08.2023 but all in vein. Hence this petition.

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Learned Standing Counsel refuted the submissions made by the learned counsel for the petitioners, but could not dispute the facts and law in this behalf.

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The apex court, in Shafin Jahan Vs Asokan K.M. & others 2018 SCC Online SC 343, has held as under:-

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"75. ...The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the State nor the law can dictate a choice of partners or

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limit the free ability of Neutral Citation No. - 2022:AHC:199131 every person to decide on these matters. They form the essence of personal liberty under the Constitution.…"

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The said judgment has been followed by the Supreme Court in Nandakumar & Another Vs. the State of Kerala & Others, Criminal Appeal No. 597 of 2018, dated 20th April, 2018, wherein the Court has quoted with approval the judgment of Shafin Jahan (supra).

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Reference may also be made to a catena of decision of the apex court of Gian Devi v. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234; Lata Singh v. State of U.P. and another, (2006) 5 SCC 475; and Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396 , which have consistently been followed by the Supreme Court and this Court in Deepika and another v. State of U.P. and others, 2013 (9) ADJ 534 as well as the Division Bench judgement of this Court in Kamini Devi & Another Vs. State of U.P. & Others (Writ C No. 11108 of 2020, decided on 23.11.2020). The Supreme Court in Gian Devi (supra) has held as follows:

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"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." 12. Learned counsel for the petitioners has submitted that both the petitioners hels from the same caste and religion. They were well acquainted each other. In view of the above law laid down by the Apex Court no restrictions can be placed upon the petitioners as with whom they want to stay and where to stay, even the relatives of the petitioners cannot substitute their opinion or preference for that of the petitioners. It is also submitted that petitioners want to live a peaceful life they have no criminal history to their credit. Nevertheless, respondent no. 4 is continuously threatening them and causing harassment. Due to fear of respondent no. 4, they are hiding them selves and roaming here and there. So they moved an application to the S.P. Ftehpur to protect their life and liberty but no heed no paid by the respondent.

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Having regard to the above facts and circumstances of the case, and law propounded by the apex court on the issue it is commanded and observed that the petitioners are at liberty to live together and no person including respondent no. 4 shall be permitted to interfere in their peaceful living together.

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In case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the Superintendent of Police, Fatehpur i.e., respondent no.2, with

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a certified copy of this order, who shall provide immediate protection to the petitioners.

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However a liberty is granted to the respondent no. 4 that if the documents brought on the record by the petitioners found to be fabricated or forged, it will be open to him to file a recall application for this order.

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It is also made clear that this Court has not adjudicated upon the alleged marriage of the petitioners and this order in no way expresses opinion about the validity of their marriage.

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With the aforesaid observations/directions, the writ petition is finally disposed of.

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No order as to costs.

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Order Date :- 6.10.2023 Rmk.

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Digitally signed by :- RAM MURTI KUSHWAHA High Court of Judicature at Allahabad

Smt. Saraswati Devi and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Smt. Saraswati Devi and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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