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2021 DIGILAW 379 (HP)

Sham Kumar v. State Of H P & Ors.

2021-07-07

SATYEN VAIDYA, TARLOK SINGH CHAUHAN

body2021
JUDGMENT Satyen Vaidya, J. - By way of instant petition, the petitioner has prayed for issuance of writ, in the nature of habeas corpus, for immediate release of detenu namely, Ms. Rajwinder Kaur aged 23 years daughter of Sh. Nirmal Singh, resident of Village Belna, Tehsil Haroli, District Una, H.P. and to appoint Warrant Officer to enable the release of detenu from the alleged illegal confinement of respondents No. 4 to 6. Further prayer has also been made seeking direction to respondents No. 2 and 3 to provide protection to the life and liberty of the petitioner and detenu. 2. Before adverting to the merits of the case, a glance at the proceedings of this Court in the instant petition, needs mention. Vide order dated 26.03.2021, this Court had directed the Superintendent of Police, Una to produce Rajwinder Kaur/corpus before this Court on 30.03.2021. On the date fixed, Ms. Rajwinder Kaur/corpus was produced in the custody of ASI Baldev Raj and LC Savita No. 156, Police Station, Haroli, District Una, H.P. In addition, parents of the parties and the petitioner also remained present before the Court. 3. On 30.03.2021, this Court had passed the following order:- "Having interacted with the parties for a considerable time, we are of the considered view that they do require further time to reconcile with the prevalent situation. Accordingly, we deem it proper to defer hearing of the case by four week. Ordered accordingly. List on 27.04.2021." 4. In pursuance to the directions issued by this Court, the State filed instructions dated 29.06.2021 on 6th July, 2021. Copies of the instructions so submitted by the State were ordered to be supplied to the learned counsel for the petitioner and the case was ordered to be listed today. 5. We have heard learned counsel for the petitioner and have also perused the record. 6. Necessary facts culled out from the petition are as under:- a) The petitioner claimed himself to be an old standing friend of Ms. Rajwinder Kaur who is stated to be aged 23 years; b) The petitioner contended that he and Ms. Rajwinder Kaur had decided to marry but respondents No. 4 to 6 (father and brothers of Ms. Rajwinder Kaur) were not agreeable; c) The petitioner was being threatened by respondents No. 4 to 6 and the Ms. Rajwinder Kaur who is stated to be aged 23 years; b) The petitioner contended that he and Ms. Rajwinder Kaur had decided to marry but respondents No. 4 to 6 (father and brothers of Ms. Rajwinder Kaur) were not agreeable; c) The petitioner was being threatened by respondents No. 4 to 6 and the Ms. Rajwinder Kaur was also being given beatings by them and was not being allowed to pursue her higher studies; f) Respondents No. 4 to 6 are stated to be conservative and had threatened that they would kill their daughter, rather to allow her marriage with the petitioner. The religion of the parties is also stated to be different. g) On 11.03.2021, the petitioner alleges to have received a text message from Ms Rajwinder Kaur to the effect that her father wanted to solemnize her marriage forcibly with other boy against her wish and if it happened, she would die. h) The petitioner alleges to have approached respondents No. 2 and 3, but without any response. I) On these averments, the petitioner has sought the reliefs as noticed above. 7. Ms. Rajwinder Kaur was produced before this Court on 30.03.2021. This Court had interacted with the parties for a considerable time and it could not be inferred from the conduct of Ms. Rajwinder Kaur that any fetters were placed on her either by respondents No. 4 to 6 or any other person. She did not complain that she was being forced not to marry a person of her choice. 8. In Girish vs. Radhamony K. and others, 2009 16 SCC 360 , the Supreme Court has held as under:- "3. Anjana Devi appeared in court and stated that she was a major and that she had married the appellant herein and she was living with him. Curiously enough, the High Court, instead of dismissing the petition and leaving the parties to take recourse to such other remedy which may be available to them in accordance with law, passed the impugned order directing registration of a case for offences allegedly punishable under Sections 366, 366-A and 376 of the Penal Code, 1860. In our opinion, the High Court had no jurisdiction to given this direction. In a habeas corpus petition all that is required is to find out and produce in Court the person who is stated to be missing. In our opinion, the High Court had no jurisdiction to given this direction. In a habeas corpus petition all that is required is to find out and produce in Court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will, the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution." 9. In view of the aforesaid position of law, this petition could have been disposed of on 30.03.2021 itself on production of Ms. Rajwinder Kaur, but this Court thought it prudent to grant the parties more time to reconcile with the prevalent situation. 10. The petitioner has placed reliance upon the judgment passed by the Supreme Court in Shakti Vahini vs. Union of India, WP (C) No. 231 of 2010. This Court is not oblivious to the settled legal position that the right to marry a person of one's choice is integral to Article 21 of the Constitution. 11. In Indian Woman Says Gang Raped on Orders of Village Court Published in Business and Financial News, (2014) 4 SCC 786 , the Hon'ble Supreme Court has held as under:- "16. Ultimately, the question which ought to consider and assess by this Court is whether the State police machinery could have possibly prevented the said occurrence. The response is certainly a "yes". The State is duty-bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the State's incapacity or inability to protect the fundamental rights of its citizens." 12. In Shafin Jahan vs. Asokan K.M. and others, (2018) 16 SCC 368 , the Hon'ble Supreme Court has held as under:- "86. The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners." 13. The facts of the instant case, however, do not call for any interference or directions from this Court under Article 226 of the Constitution of India. Firstly, Ms. Rajwinder Kaur did not echo the same feeling towards the petitioner as contended by the petitioner in his petition and secondly, she did not complain of any compulsion being employed against her not to marry a person of her choice. 14. The facts were further verified by the State. An inquiry into the allegations of petitioner were conducted by a team of police officials including Lady Constable and the President and Ward Member of concerned Panchayat. In her statement recorded by the aforesaid team, Ms. Rajwinder Kaur had stated that she did not want to marry the petitioner. 15. It is worth noticing that instant petition remained pending before this Court for more than three months but not even a whisper came from Ms. Rajwinder Kaur providing any credence to the contentions made by the petitioner. 16. The petition contains only vague and bald allegations and throughout the proceedings of the petition, no corroboration to such allegations could be attached. The petitioner had not even provided his credentials either in the petition or at any subsequent stage, in the absence of which, the petition cannot be said to be bonafide. 17. 16. The petition contains only vague and bald allegations and throughout the proceedings of the petition, no corroboration to such allegations could be attached. The petitioner had not even provided his credentials either in the petition or at any subsequent stage, in the absence of which, the petition cannot be said to be bonafide. 17. The petitioner though has placed on record a copy of FIR dated 26.08.2021 registered with Police Station, Haroli, Distict Una, but on perusal of its contents, we could not find anything suggesting that the alleged assault on petitioner by respondents No. 4 to 6 was for the reason as stated in the petition. There is no whisper of petitioner's alleged relationship with Ms. Rajwinder Kaur in the complaint lodged by the petitioner with the police. The petitioner, has also sought help of Annexure P-2, which allegedly is a text message sent by Ms. Rajwinder Kaur to him. Even if the said message is taken to have been scribed by Ms. Rajwinder Kaur, it does not mention her wish to marry the petitioner. 18. In absence of any material to infer violation of any fundamental right of Ms. Rajwinder Kaur to marry a person of her choice and fetters being illegally placed by respondents No. 4 to 6 or any other person to deter her from marrying a person of her choice, the directions as sought by the petitioner cannot be issued by this Court, therefore, the petition being devoid of merits is dismissed. 19. Before parting, it is made clear that the State is legally bound to protect all its citizens, in accordance with law. In the peculiar circumstances of the case, we direct that in case of any complaint being made by Ms. Rajwinder Kaur daughter of Sh. Nirmal Singh, resident of Village Belna, Tehsil Haroli, District Una, H.P., alleging violation of any of her fundamental or legal right to the police or any other authority, the same shall be promptly attended to by providing her all necessary assistance, in accordance with law.