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“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.”

In a significant legal development, the Allahabad High Court just recently on November 11, 2020, in the latest, landmark 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:

“5. 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.”

Further,

“5. 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.”

BRIEF FACTS

In the judgment authored by Justice Pankaj Naqvi for himself and Justice Vivek Aggarwal sets the ball rolling that 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, Police Station Vishnupura, Kushinagar on the premise that the couple is of the age of majority, competent to contract a marriage, performed Nikah 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. /Priyanka Kharwar @ Alia 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 BENCH’S VIEW

Age of majority attained: 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 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.

Age not in dispute: Once the 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 of committing an offence under Section 363 IPC or 366 IPC as a 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 an offence under Section 352, 506 IPC qua petitioner no. 2 and 3 prima facie, in view of the 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.

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 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.”

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 to visit rights to meet his daughter. Once the petitioner 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 courtesy and respect to her family.

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 the 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 a most important salient part of this notable judgment and conveys in clear and unequivocal terms what message the Judges want to convey!

RIGHT TO CHOOSE A PARTNER IS A FUNDAMENTAL RIGHT

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.”

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.

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. the 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.”

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, 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!

 


AUTHOR
Sanjeev Sirohi, Advocate
Practicing criminal law before courts in Uttar Pradesh