Sadar Samad Ibrahim vs State Of Gujarat
2022 Latest Caselaw 4082 Guj

   R/SCR.A/2443/2022                         ORDER DATED: 11/04/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 2443 of 2022

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                       SADAR SAMAD IBRAHIM
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR PARVEZ A PATHAN(10862) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE NOT RECD BACK for the Respondent(s) No. 4
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  CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                         Date : 11/04/2022

                          ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The petition preferred by the father under Article 226 of the Constitution of India, this Court at the time of issuance of notice on 7.3.2022, passed the following order:

"1. Daughter of the petitioner is not available and hence this petition for writ of habeas corpus:-

11. The Petitioner thereby humbly prays that this :

a. YOUR LORDSHIPS BE PLEASED to admit

R/SCR.A/2443/2022 ORDER DATED: 11/04/2022

and allow this Petition;

b. YOUR LORDSHIPS BE PLEASED to issue a writ of habeas corpus and/or any other writ, order or direction directing the Respondent no.4 to produce the daughter of Petitioner-"SADAR FARHIM SAMAD" before this Hon'ble Court and thereafter considering her wish and will, the custody of the corpus be handed over to the Petitioner in the interest of justice.

c. Pending admission hearing and final disposal of this Petition, YOUR LORDSHIPS BE PLEASED to direct the Respondent no.2 and 3 to produce corpus namely 'SARDAR FARHIM SAMAD" before this Hon'ble Court in the interest of justice."

d. YOUR LORDSHIPS BE PLEASED to grant such any other and further relief as may be deemed fit in the nature of justice."

2. According to him, the daughter called up her sister, who had made a grievance that she was at the hospital. When inquired, whereabouts of the corpus had not been found. Complaint has already been given to the police on 18.02.2022. Let the same be inquired into.

3. The latest details may be furnished by the

R/SCR.A/2443/2022 ORDER DATED: 11/04/2022

petitioner to the police for making it easy for them to have access.

4. Notice returnable on 21.03.2022. Ms. Jirga Jhaveri, learned Additional Public Prosecutor, waives service of notice of rule for and on behalf of the respondent-State."

2. On 21.3.2022, following order came to be passed:

"1. According to the learned advocate, Mr.Pathan, the corpus has called up her sister and other family members on 18.03.2022. She also sent her live location, which is of Arjunganj, Lucknow. The report from Mr.V.K.Bhutiya, Police Inspector, Ankleshwar Rural Police Station is received, which also contains this detail. The another aspect is that she has already got married and she has sent her marriage certificate through courier. She can be contacted through the social media and also can be asked to furnish her marriage certificate. If her choice marriage is a cause of concern and worry of her, she can be assured by the police to provide her necessary protection.

2. We would like to remind her the decision of the Apex Court rendered in case of Laxmibai Chandaragi B. vs. The State of Karnataka, reported in 2021 (3) SCC 360, it is a right of every girl to marry a person of her own choice

R/SCR.A/2443/2022 ORDER DATED: 11/04/2022

and it is emphatically held by the Apex Court being a fundamental right under Article 21. We would quote the decision of the Apex Court in this regard:-

10. We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy. It is in that context it was further observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not is not expected to succumb to the concept of "class honour" or "group thinking."

11. In Shafin Jahan v. Asokan K M & Ors., this Court noticed that the society was emerging through a crucial transformational period. Intimacies of marriage lie within a core zone of privacy, which is inviolable and even matters of faith would have the least effect on them. The right to marry a person of choice was held to be integral Article 21 of the Constitution of India. Inthis behalf, the judgment of the nine Judges Bench in Justice Shakti Vahini v.Union of India (2018) 7 SCC 192, Asha Ranjan v. State of Bihar (2017) 4 SCC 397, (2018) 16 SCC 4084 Lata Singh

R/SCR.A/2443/2022 ORDER DATED: 11/04/2022

v. State of U.P. (2006) 5 SCC 475 K.S.Puttaswamy v. Union of India may also be referred to where the autonomy of an individual inter alia in relation to family and marriage were held to be integral to the dignity of the individual.

12. The intervention of this Court would really not have been required in the given facts of the case if the IO had conducted himself more responsibly in closing the complaint and if he really wanted to record the statement of the petitioner No.1, should have informed that he would visit her and recorded the statement instead of putting her under threat of action against petitioner No.2 to come to the police station.

3. The Superintendent of Police may on social media and otherwise can appeal to the girl to approach the police and also ensure her the protection once she is already turned major and as marrying to a person of her own choice is equated with her life and liberty under Article

21. The protection to her from any resistance would be must from any authority, once assured to her. These girls may choose to approach the police and may save the huge resources which are otherwise to be engaged in more productive ways.

3.1 This would not mean that the Court in any

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manner undermines the requirement of protecting these girls or any citizen needing safeguard, however, once they turn 18 years of age, it is only on account of their apprehension to the response of their family, cast, clan and the society that they choose not to surface and go on evading the Law Enforcement Agencies.

3.2 We propose the following draft for the purpose of circulation which can also be translated into any vernacular language or in national language.

"It is the fundamental right of every girl aged 18 years under Article 21 of the Constitution of India as held by the Apex Court in case of Laxmibai Chandaragi B. vs. The State of Karnataka [2021 (3) SCC 360] to marry a person of her choice, if no spouse suffers any legal infirmity. Name:________________________, aged:___ also can exercise such right. The family, the community or the clan cannot obstruct when two adult individuals agree to enter into wedlock and their consent has to be piously given privacy. Ms._ ________________________ may chose to approach to police and she may also seek protection in the event of any apprehension."

4. Considering the fact that the girl has already turned 18 in this case, the Superintendent of Police may use his discretion to also make use of

R/SCR.A/2443/2022 ORDER DATED: 11/04/2022

the social media after verifying the birth date of the boy with whom she is alleged to have gone. This may be necessary once, the girl is already 18 years and to save the resources, the energy and the time of the police force.

5. The matter is adjourned to 05.04.2022."

3. The police officer had brought the Corpus from Lucknow. She is a girl of 24 years of age having chosen to go with respondent No.4 aged 28 years. They had met each other online while playing "free-fire" game and had become fond for each other.

4. The Corpus had agreed to join her parents on 25.3.2022 soon after her arrival and noticing the fact that he was from Uttar Pradesh and nobody to accompany him, we had made a request to the police to inquire into his antecedents and his family background.

4.1. He has no criminal antecedents and parents are agriculturists at Village: Bhaurai, Taluka:Chunar, District:Mirzapur, State: Uttar Pradesh and has a sister who is studying.

5. We could see that the Corpus and respondent No.4 has not got married. Respecting the request of the elder sister of the Corpus as the father of hers in the present petition is not keeping very good health, they have respectfully acted and were cordial in their approach,

R/SCR.A/2443/2022 ORDER DATED: 11/04/2022

which we found heartening. The fact remains that today the Corpus is unwilling to join respondent No.4 for any kind of association. We have made them understand that if they want to take a separate course of life, let this decision be respected. It is also assured that they have deleted all the pictures and videos, if there be any and nothing remains to be exchanged.

6. We could notice that the decision of the Corpus is out of her own volition and in any manner not influenced by the parental wish.

7. The petition is disposed of accordingly.

(SONIA GOKANI, J)

(MAUNA M. BHATT,J) NAIR SMITA V.