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Right To Choose A Partner Of Choice A Fundamental Right: Allahabad HC

                    It warms the inner cockles of heart to learn that in a significant development, the Allahabad High Court just recently on 11 November, 2020 in a latest, landmark, learned and laudable judgment titled Salamat Ansari & 3 others vs. State of UP & 3 others in Crl. Mis. Writ Petition No. – 11367 of 2020 has elegantly, explicitly and effectively observed that, “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.” When two adults consent to have relationship then who are others to disturb them? Every individual adult has a fundamental right to choose a partner of choice as is enshrined in our Constitution. Who can deny this?

At the outset, it is observed before saying anything else in this judgment that, “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.”

To start with, this noteworthy judgment authored by Justice Pankaj Naqvi for himself and Justice Vivek Aggarwal sets the ball rolling by first and foremost observing in para 1 that, “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.”

To be sure, it is then laid bare in para 2 that, “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. 57068 of 2014 (Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others) decided on 16.12.2014 and its recent reiteration in Writ C No. 14288 of 2020 (Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another) decided on 23.09.2020.”

To put things in perspective, the Bench then puts forth in para 3 that, “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 Certificate (annexure 3) is 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 married couple.”

As it turned out, it is then stated in para 4 that, “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 Section 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 respectively.”

Most eruditely and most remarkably and also most significantly, the Bench then very brilliantly minces no words to make it known in para 5 which forms the hallmark, cornerstone and bedrock of this notable judgment that, “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.”

Equally significant is what is then stated in para 14 which more or less conveys the same thing that, “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.”

Be it noted, it is then noted in para 15 that, “The judgment in Priyanshi (supra) 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.”

Most appropriately, the Bench then holds in para 16 that, “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 courtsey and respect to her family.”

For the sake of clarity, it is then noted in para 17 that, “We clarify that while deciding this petition, we have not commented upon the validity of alleged marriage/conversion.”

Finally, it is then held in the last para 18 that, “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 0199 of 2019, 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.”

In essence, it is rightly held in para 11 while citing the case of KS Puttaswamy vs Union of India (2017) 10 SCC 1 that, “Right to choose a partner irrespective of caste, creed or religion, is inherited under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.” Para 5 as already stated above is most important salient part of this notable judgment and conveys in clear and unequivocal terms what message the Judges want to convey!

Needless to say, it is also very rightly pointed in para 10 that, “We find from para 46 and 47 of Shakti Vahini (supra) 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, (2018) 16 SCC 602 which after relying upon Shafin Jahan (supra) held that on attaining majority an individual is entitled to make his/her choice which is pivotal and cannot be infringed by anyone.”

To sum it up, parents also must respect the liberty of an individual who has attained the age of majority as also his/her relatives! A relationship of two matured individuals should not be jeopardized at the whim and caprice of a parent as is pointed in para 9 of this judgment also. We cannot overlook that even the Apex Court in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368, decided on April 9, 2018, very rightly cited the case law of Gian Devi v Superintendent, Nari Niketan, Delhi 31, 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. Also, in a more recent case of a three Judge Bench in Soni Gerry v. Gerry Douglas it is rightly stated in para 10 that, “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.” Both the courts and the parents as also the relatives of two consenting adults must always keep this in mind while confronted with such cases! This will certainly be in the mutual interest of both the consenting adults also as also their families instead of resorting to violence or fighting court battles aimlessly! There can be no denying it!

Sanjeev Sirohi

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