Laxmanbhai Babarbhai Rabari vs State Of Gujarat
2022 Latest Caselaw 2502 Guj

      R/SCR.A/10766/2021                                    ORDER DATED: 07/03/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 10766 of 2021

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                           LAXMANBHAI BABARBHAI RABARI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
AMITKUMAR B PARMAR(8618) for the Applicant(s) No. 1
MR JIGAR D DAVE(6528) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4,5
NOTICE UNSERVED for the Respondent(s) No. 6
MS JIRGA JHAVERI ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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     CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
           and
           HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                 Date : 07/03/2022

                              ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. The Corpus is brought before us today, by the Police Officer from the Women Protection Home. We inquired from her once again and she has adhered to her version of going with respondent No.6-Devendra alias Kallu Arunsingh Bhadoriya. As we noted on the last occasion on 4.3.2022 that she being on a family way, she does not want to even for the period of two months which will make him eligible to get married, reside separately. Our concern also was about her future and future of the child, she would have. Respondent- No.6-Devendra alias Kallu Arunsingh Bhadoriya is represented by Mr.Kuldeep Vaidya through Legal Aid. He also has

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produced an agreement entered into by and between the parties and notarised in presence of the Notary executed today on 7.3.2022, where both of them have expressed their keen desire to be with one another. It is specific understanding of the law. She also has stated that as to how she is having a fetus in her womb and he has taken the responsibility of maintaining both of them with the best possible efforts and has further ensured to marry her, once he enters the age of 21 years. He is short by two months. He is made to understand in Hindi language which is his mother language and this Court has verified from him the details. Considering the fact that the Corpus is not desirous to join her family and is insisting for joining No.6-Devendra alias Kallu Arunsingh Bhadoriya, she already being major, there could be no better to her and with the fetus in her womb, she has also explained her wish and will and the reason as to why she is wanting to now join respondent No.6. She needs to be given the permission as the law does not permit any kind of restrictions.

2. Her parents are unhappy, upset and unpredictable and through their learned advocate requested fervently not to allow her to join respondent No.6. There is no reason for the Court to deny or to agree to their request, more particularly, considering her majority and her present status and he having agreed to convert this relationship into marital relationship in a near future.

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3. In case of Lata Singh v. State Of U.P. & Another reported in (2006) 5 SCC 475 while dealing with writ petition under Article 32 of Constitution, the Court protected the young couple who was constantly under a threat where it observed that inter-caste marriage under the Hindu Marriage Act or any other law is not prohibited. The Court was also surprised that the police has proceeded against petitioner's husband's family, instead of against petitioner's brothers for their unlawful and high-handed acts.

3.1. The Court had for those who faced the violence for marrying outside the caste has held as under:

"17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste

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or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administrative/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.

18. We sometimes hear of "honour" killings of such persons who undergo inter-caste or inter- religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism."

4. The Apex Court in the case of Shakti Vahini vs. Union of India and Ors. reported in (2018) 7 SCC 192 has referred to various decisions on this aspect and directed as under:

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"48. The 'Khap Panchayats' or such assembly should not take the law into their hands and further cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law. Law has to be allowed to sustain by the law enforcement agencies. For example, when a crime under IPC is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law. But, by putting forth a stand that they are spreading awareness, they really can neither affect others' fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.

49. Having noted the viciousness of honour crimes and considering the catastrophic effect of such kind of crimes on the society, it is desirable to issue directives to be followed by the law enforcement agencies and also to the various administrative authorities. We are disposed to think so as it is the obligation of the State to have an atmosphere where the citizens are in a position to enjoy their fundamental rights. In this context, a passage from S. Rangarajan v. P. Jagjivan Ram and others14 is worth reproducing:-

"51. We are amused yet troubled by the stand taken by the State

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Government with regard to the film which has received the National Award. We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film, is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.

We are absolutely conscious that the aforesaid passage has been stated in respect of a different fundamental right but the said principle applies with more vigour when the life and liberty of individuals is involved. We say so reminding the States of their constitutional obligation to comfort and (1989) 2 SCC 574 nurture the sustenance of fundamental rights of the citizens and not to allow

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any hostile group to create any kind of trench in them.

50. We may also hold here that an assembly or Panchayat committed to engage in any constructive work that does not offend the fundamental rights of an individual will not stand on the same footing of Khap Phanchayat. Before we proceed to issue directions to meet the challenges of honour crime which includes honour killing, it is necessary to note that as many as 288 cases of honour killing were reported between 2014 and 2016. According to the data of National Crime Records Bureau (NCRB), 28 honour killing cases were reported in 2014, 192 in 2015 and 68 in the year 2016.

51. We may note with profit that honour killings are condemned as a serious human rights violation and are addressed by certain international instruments. The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence addresses this issue. Article 42 reads thus:-

"Article 42 - Unacceptable justifications for crimes, including crimes committed in the name of so-called "honour"

1. Parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called "honour" shall not be

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regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.

2. Parties shall take the necessary legislative or other measures to ensure that incitement by any person of a child to commit any of the acts referred to in paragraph 1 shall not diminish the criminal liability of that person for the acts committed."

52. Once the fundamental right is inherent in a person, the intolerant groups who subscribe to the view of superiority class complex or higher clan cannot scuttle the right of a person by leaning on any kind of philosophy, moral or social, or self- proclaimed elevation. Therefore, for the sustenance of the legitimate rights of young couples or anyone associated with them and keeping in view the role of this Court as the guardian and protector of the constitutional rights of the citizens and further to usher in an atmosphere where the fear to get into wedlock because of the threat of the collective is dispelled, it is necessary to issue directives and we do so on the foundation of the principle stated in Lakshmi Kant Pandey v. Union of India15, Vishaka and others v. State of Rajasthan and others 16 and Prakash Singh and others v. Union of India and others17.

53. It is worthy to note that certain legislation have come into existence to do away with social

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menaces like "Sati" and "Dowry". It is because such legislation are in accord with our Constitution. Similarly, protection of human rights is the élan vital of our Constitution that epitomizes humanness and the said conceptual epitome of humanity completely ostracizes any idea or prohibition or edict that creates a hollowness in the inalienable rights of the citizens who enjoy their rights on the foundation of freedom and on the fulcrum of justice that is fair, equitable and proportionate. There cannot be any assault on human dignity as it has the potentiality to choke the majesty of law. Therefore, we would recommend to the legislature to bring law appositely covering the field of honour killing."

5. In Laxmibhai Chandaragi B. and Anr. v. State of Karnataka and Ors. reported in (2021) 3 SCC 360, considering the right to marry person of one's choice is integral part of Article 21. It is autonomy of an individual inter alia in relation to family and marriage is integral to the dignity of the individual. It is also further said that there is different sensitivity of police in such matters. There is training programme to be devised and guidelines to be issued by police authorities in this regard. It was a case of an FIR registered by father of a missing girl. She was found in contract with one person and investigation revealed that without informing her parents, she travelled by flight from Hubli to Bangalore and further from Bangalore to Delhi and thereafter married to the person of her choice. When IO visited the residence of the

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boy at Ghaziabad, it was intimated that the couple was already married. The IO insisted that the girl should appear at the police station to record a statement so that the case can be closed. When she refused because of the threat from her parents, the IO insisted and she was compelled to do that. This tactic was strongly deprecated by the Supreme Court and he was directed to be sent for counselling as to how to manage such cases. Consent of the family or the community or the clan held not necessary once the two adult individuals agree to enter into a wedlock.

"10. Educated younger boys and girls are choosing their life partners which, in turn is a departure from the earlier norms of society where caste and community play a major role. Possibly, this is the way forward where caste and community tensions will reduce by such inter marriage but in the meantime these youngsters face threats from the elders and the Courts have been coming to the aid of these youngsters.

11. 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.1 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

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is not is not expected to succumb to the concept of "class honour" or "group thinking."2

12. In Shafin Jahan v. Asokan K M & Ors. 3, this Court noticed that the society was emerging through a crucial transformational period.4 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. In this behalf, the judgment of the nine Judges Bench in K.S. Puttaswamy v. Union of India5 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."

6. In the instant case, we can notice that on the case of missing complaint, the police has found the girl and the approach has been very constructive and positive. It has ensured approach of possible care of keeping the women rights. We infact need to put it on record and appreciate the sensitivity with which the entire issue has been dealt with. We would also request the learned APP to share a copy of this with the Commissioner of Police and if he deems it appropriate to Director General of Police for intimating the Director General of Police of Uttar Pradesh, if the couple chooses to settle there.

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7. Matter is being disposed of with a direction of certificate of marriage to be produced within a period of one month of respondent No.6 attaining the age of majority and Registrar (Judicial) shall place before the Court the Certificate of Marriage once received from the couple.

8. For travelling outside the State of Gujarat with the Corpus, according to learned APP, a day's time will be necessary for seeking permission from higher officials of Police force. Let the girl to continue at Women Protection Home for one day and necessary arrangement shall be made to ensure that no untoward incident happens in the meantime.

9. Petition is accordingly disposed of with above directions.

(SONIA GOKANI, J)

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