Allahabad High Court
J And M vs State Of Up And 3 Others on 17 May, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:89500-DB
Court No. - 39
Case :- WRIT - C No. - 16666 of 2024
Petitioner :- J And M
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Irshad Saleem,Quazi Mohammad Akaram
Counsel for Respondent :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Mr Mohd. Umar Iqbal Khan, holding brief of learned counsel for the petitioners and Dr. D.K. Tiwari, learned Additional Chief Standing Counsel for the State.
2. The present joint petition has been filed by two petitioners hereinafter described as 'J' and 'M'. They are in an intimate relationship, to the extent they have disclosed their decision to live together i.e. in the company of each other. Both are adults. Prima facie, cause of action is seen to exist on the strength of averments made, and the documents appended to the petition.
3. As to the cause of action, it has been disclosed - owing to the gender identity of one of the petitioners, their intimate relationship may not have found wide societal acceptance. For reason of that societal prejudice existing, the life, liberty, dignity of the petitioners and the safety of their properties is at risk and/or stands compromised, at the instance of persons closely related to the petitioners and others.
4. At present, specific allegations have been made against 'R', the father of petitioner number 2, of verbal and physical assault committed by him on petitioner number 1, and of humiliation thus suffered by the petitioners. Reliance has been placed on a recent decision of the Supreme Court in Devu G Nair Vs State of Kerala, 2024 (2) ILR Kerala 273, wherein it has been observed as below:
"j. The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;
m. Sexual orientation and gender identity fall in a core zone of privacy of an individual. These identities are a matter of self-identification and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative."
5. In cases involving citizens faced with such violations of their fundamental right to life and liberty arising from societal pressure and abuse, occasioned by their personal choice made - to live in the company of a person of their choice, that may perceptibly conflict with the accepted/prevalent societal norm and or prejudice, the Courts have always recognised the primacy of and therefore enforced the highest Constitutional fundamental right to life and liberty, notwithstanding other attending circumstances (not involving infractions of any statutory law).
6. Learned Additional Chief Standing Counsel assures, no undue harm may come the petitioners' way for reason of the decision made by the petitioners to live together.
7. Amongst others, it (living with a person of one's choice) is one sphere of life where the Constitutional Courts positively enforce the Constitutional law dictate, to negate and contain any societal prejudice that may otherwise exist and may lead to violation of the fundamental rights of a citizen involving obstruction, harassment, resistance and at times persecution of a citizen for reason of his individuality or his individual choice made. Being human, inheres and promotes individuality - whether physical or psychological or emotional or other. Constitutional democracy promises not only to preserve diverse individuality that arises in any human society, but it actively promotes the same. It is to achieve that core value that the Constitutional law guarantees fundamental right to life and liberty, with dignity.
8. Human beings are bound to make individual choices arising from their individual makeup and circumstances that contribute to their individual personalities. The diversity of perception and personality that perhaps springs from the basic makeup of a human beings, leads different human beings to make different choices, arguably though placed in similar circumstances. Therefore, the right of free choice is the soul of liberty and the most cherished and dominant characteristic of any free society.
9. Our Constitution seeks to preserve that freedom - to live one's life freely, including with a person of one's choice. That fundamental right may never be negotiated by the society on the strength of its existing prejudices. The evolution of a society may itself be a journey of curing its prejudices arising from the past and even apprehensions about the future. For a society to restrain its individual members from asserting their individuality, within the framework of existing laws, is to self- obstruct its path of evolution.
10. In the absence of any regulatory measure shown to exist as may require the instant petitioners to do anything more at present, the fundamental right of the petitioners to their life and liberty that inheres in it - free choice and preservation of their dignity, is in urgent need of a reassuring protective embrace of this Constitutional court, to keep safe the petitioners, their physical and other properties, their privacy and dignity included, from any harm that may otherwise come to them from any quarter, for reason of the free choice expressed by them - to live together.
11. Accordingly, a protective Mandamus is issued, in rem, to declare that none may harm the petitioners or their properties, either physically or otherwise, for reason of the petitioners having decided to live together. That protective line drawn by us may be enforced by the State respondents. If any person, body, or entity may violate that line of protection, they may be confronted with this order. Any continued infringement by such person, body or entity, thereafter, may stand exposed to an appropriate measure/proceeding, including as to contempt, in accordance with the established law.
12. In view of the above we dispose of this petition with a direction upon respondent no. 2 to forthwith ensure due implementation of this order such that adequate arrangements are made to preserve the life, liberty, and properties of the petitioners, with dignity. No harm may come their way from any member of the society etc., for reason of personal choice made by the petitioners, to live together.
13. In that regard, the petitioners may personally meet the said respondent no. 2, on 12 June 2024, at 11:00 AM. On that date and time, the said authority may hear the petitioners for surviving grievance/s, if any. If required, appropriate further arrangements may be made at that stage, to give full effect to this order.
14. Office is directed to take necessary steps to ensure that the names of the petitioners are not commonly reflected in the computerised records of the Court - as are visible to the public. Only in the event of certified copy of this order being applied for by the petitioners (and not by others), the same may be issued disclosing the full name particulars of the petitioners. Otherwise, the petitioners may only be described as 'J' and 'M' respectively.
15. Accordingly, disposed of.
Order Date :- 17.5.2024
Noman
(Donadi Ramesh, J.) (S.D. Singh, J.)
