Adult’s Right To Solemnise Marriage Or Live With Person Of Choice Protected Under Article 21: Allahabad HC

It is most refreshing and most reassuring to note that none other than Allahabad High Court which is the biggest High Court not just in India but in the whole world has in a learned, laudable, landmark, logical and latest judgment titled Naziya Ansari And Another vs State Of UP And 2 Others in Criminal Misc. Writ Petition No. – 9396 of 2024 and cited in Neutral Citation No. – 2024:AHC:102679-DB and also in 2024 LiveLaw (AB) 383 that was pronounced as recently as on June 7, 2024 has been most unequivocal in asserting most firmly that no one can restrain an adult from going anywhere that he/she likes, staying with a person of his/her choice or solemnizing marriage according to his/her will or wish as “this is a right which flows from Article 21 of the Constitution”. We need to also note here that while observing thus we see that a Division Bench of Allahabad High Court comprising of Hon’ble Mr Justice JJ Munir and Hon’ble Mr Justice Arun Kumar Singh Deshwal also criticized a Judicial Magistrate for sending an adult woman who is petitioner no. 1 to her uncle’s home after the uncle who is respondent no. 3 lodged an FIR against her husband who is petitioner no. 2. Essentially, the Magistrate had sent the woman to her uncle’s home despite her statement under Section 164 of the CrPC wherein she had expressed fear for her life if sent to her uncle/parent’s home.

By all accounts, we definitely must acknowledge here without any inhibition that the Allahabad High Court very rightly found fault with the Magistrate’s order of sending the woman back to her uncle’s home as the Court underscored unequivocally that an adult could not be sent into the custody of another and forced to stay with him/her. It is against this backdrop that the Court while noting that the impugned FIR contained uncontroverted allegations which did not make out a case against the accused quashed the FIR. In addition, we must note that the Court also issued a mandamus to the Superintendent of Police (SP) Siddharthnagar and the Station House Officer, Police Station-Bansi, District-Siddharthnagar to ensure that the woman goes wherever she likes and stays with whomsoever she wants without any hindrance from her uncle or any other family member.

It is also definitely perfectly in order that the Allahabad High Court also very rightly directed the concerned officers to ensure that her uncle or any other family member does not harm her in any manner. While precisely very rightly underscoring that “honour killing in such matters is not an unknown phenomenon”, the Allahabad High Court very rightly added that the Superintendent of Police, Siddharthnagar and the Station House Officer, Police Station-Bansi, District-Siddharth Nagar were “equally answerable” for not taking action against the woman’s uncle by registering an appropriate FIR and safeguarding the woman’s life and security. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Division Bench of Allahabad High Court comprising of Hon’ble Mr Justice JJ Munir and Hon’ble Mr Justice Arun Kumar Singh Deshwal sets the ball in motion by first and foremost putting forth in para 1 that, “Learned counsel for the petitioners is permitted to implead the S.P. Siddharthnagar, as a party respondent, to this petition, during the course of the day.”

To put things in perspective, the Division Bench envisages in para 2 of this robust judgment that, “The first petitioner is an adult woman aged about 21 years. It is alleged that the second petitioner is an adult man. They have married according to their freewill and wish. Learned counsel for the petitioners has pointed out that the first petitioner’s Secondary School Certificate issued by the Maharashtra State Board is on record, which shows her date of birth as 25.04.2003. She is, therefore, now aged 21 years. Apparently, she has married the second petitioner on 17.04.2024 according to Muslim rites, regarding which there is a marriage certificate issued by the Telangana State Waqf Board dated 25.04.2024. It has been issued by the Chief Executive Officer of the said Board.”

As we see, the Division Bench then specifies laying bare in para 3 that, “Learned counsel for the petitioners points out that not only the Police went after the second petitioner to arrest him in connection with the impugned FIR, but also have taken the first petitioner into unlawful custody and handed her over to her uncle, respondent no.3, one Mohd. Jaheer, son of Tahir. The first petitioner was produced before the Magistrate by the Police and her statement under Section 164 Cr.P.C. recorded. In her statement, the prosecutrix has categorically said that she is 21 years old and passed her Class XII Examination. She has also said that on 08.04.2024, she left home of her own at nine o’ clock in the evening and went to a place called Supa. There, at her bidding, one Hidayat was waiting in a white coloured Car and she went along with him of her freewill to Hyderabad. Once in Hyderabad, she had phoned up the second petitioner, Mohd. Umar and called him over. The two stayed in a hotel on 17.04.2024 and contracted a marriage there. It is stated before the Magistrate also that the first petitioner’s uncle, Mohd. Jaheer, has implicated the second petitioner in a false case and is extending death threats to her.”

As it turned out, the Division Bench then enunciates in para 4 that, “Mr. Ravindra Prakash Srivastava, learned Counsel who appears on behalf of respondent no.3, when confronted with the statement, stated that he does not want to file a counter affidavit.”

Simply put, the Division Bench states in para 5 that, “Mr. Shashi Shekhar Tiwari, learned AGA, who has produced the case diary carrying the statement of the prosecutrix under Section 164 Cr.P.C. also states that he had nothing further to add. The case diary shall be retained on record and made part of it.”

Needless to say, the Division Bench states in para 8 that, “Heard Mr. Akhilesh Kumar Mishra, Advocate holding brief of Mr. Surendra Mohan Mishra, learned counsel for the petitioners, Mr. Ravindra Prakash Srivastava, learned counsel for respondent no.3 and Mr. Shashi Shekhar Tiwari, learned AGA for the State.”

Most significantly, the Division Bench mandates in para 9 postulating that, “Upon hearing learned counsel for the parties, we find that this is a case where the petitioners are adults and have married according to Muslim rites on 17.04.2024, regarding which, there is an authoritative certification by the Telangana State Waqf Board through a certificate dated 25.04.2024. A copy of the same has been annexed at page no.26 of the paper book. The first petitioner’s mark-sheet clearly establishes that she is an adult much above 18 years. Even if the petitioners have not married each other, no one can restrain an adult from going anywhere that he/she likes, staying with a person of his/her choice, or solemnizing marriage according to his/her will or wish. This is a right which flows from Article 21 of the Constitution.”

Most forthrightly, the Division Bench propounds in para 10 mandating that, “Ex facie, therefore, the impugned FIR and all proceedings taken pursuant thereto are manifestly illegal and ultra vires. The first petitioner’s uncle (father’s brother) has absolutely no right to lodge the impugned FIR or as petitioner no.1 has said, threaten her in any manner. This matter has a slightly serious angle to it, because petitioner no.1 in her statement under Section 164 Cr.P.C., has expressed an apprehension that she would be done to death. Honour killing in such matters is not an unknown phenomenon and it is very important to save a human life from extinction on account of misguided emotions or notions of morality. This issue is quite independent of the issue of matrimony that the parties have entered into. No citizen can kill another for holding a different opinion and it is the foremost duty of the State to preserve human life.”

While taking potshots at the Magistrate, the Division Bench laments in para 11 stating clearly that, “This Court is dismayed to find that after the prosecutrix made a statement before the Magistrate on 07.05.2024 fearing for her life at the hands of respondent no.3, Mohd. Jaheer, the Magistrate has reportedly sent her back home to Mohd. Jaheer. Even otherwise, an adult cannot be sent into custody of another and forced to stay with him/her.”

Adding more to it, the Division Bench further notes in para 12 that, “This Court is further constrained to observe that the learned Magistrate before whom the prosecutrix said that she feared for her life because Mohd. Jaheer had threatened to do her death was duty bound to get an FIR registered against Mohd. Jaheer, besides taking adequate measures to secure the safety and life of the first petitioner. The learned Magistrate did nothing. The statement under Section 164 Cr.P.C. is recorded in the case diary. Therefore, the Superintendent of Police, Siddharth Nagar and the Station House Officer, Police Station-Bansi, District-Siddharth Nagar are equally answerable for not taking action against Mohd. Jaheer by registering an appropriate FIR and also safeguarding the life and security of the first petitioner.”

While citing the relevant case law, the Division Bench points out in para 13 that, “In the circumstances, therefore, we may notice that in State of Haryana & Others Vs. Bhajan Lal And Others reported in 1992 Supp (1) SCC 335, the seven criteria that were laid down, on foot of which an FIR may be quashed, are mentioned in paragraph no.102 of the report. Paragraph no.102 of the report in Bhajan Lal (supra) reads as under:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.””

Be it noted, the Division Bench notes in para 14 that, “The third criteria where an FIR may be quashed is “where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose commission of any offence and make out a case against the accused.” The third criteria clearly applies in this case, inasmuch as, the first petitioner, during investigation when produced before the Magistrate said in her statement under Section 164 Cr.P.C. that the allegations in the FIR were absolutely without basis.”

As a corollary, the Division Bench directs in para 16 that, “In the circumstances, we allow this writ petition and quash the impugned FIR giving rise to Case Crime No.82 of 2024, under Section 363 IPC, Police Station-Bansi, District-Siddharth Nagar.”

Further, the Division Bench directs in para 17 that, “In addition, we issue a mandamus to the S.P. Siddharthnagar and the Station House Officer, Police Station-Bansi, District-Siddharthnagar to ensure that the first petitioner goes wherever she likes and stays with whomsoever she wants, without any hinderance from Mohd. Jaheer or any other member of her family. It will also be the duty of the S.P. Siddharthnagar and the Station House Officer, Police Station-Bansi, District-Siddharthnagar, to ensure that Mohd. Jaheer or any other member of the first petitioner’s family, do not harm her, in any manner, whatsoever.”

What’s more, the Division Bench while fixing accountability further hastens to add in para 18 directing that, “In the event, any harm or injury comes to the first petitioner then the S.P. Siddharthnagar and the Station House Officer, Police Station-Bansi, Siddharthnagar, would be personally answerable to this Court.”

Finally, we see that the Division Bench then ultimately concludes by holding in para 19 that, “The Registrar (Compliance) is directed to communicate this order to the Superintendent of Police, Siddharthnagar and the Station House Officer, Police Station-Bansi, Siddharthnagar through the Chief Judicial Magistrate, Siddharthnagar by Monday.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.