Farjana And Anr vs State Of Haryana And Ors
2022 Latest Caselaw 5906 P&H

CRWP-5422-2022                                                        -1-

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                                  CRWP-5422-2022
                                                  Date of decision : 02.06.2022

Farjana and another

                                                        ... Petitioners

                                         Versus

State of Haryana and others

                                                      ... Respondents

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:     Ms.Vandana Sharma , Advocate
             for the petitioners.

             Mr.Praveen Bhadu, AAG, Punjab.

VIKAS BAHL, J. (ORAL)

The present Criminal Writ Petition has been filed under

Articles 226/227 of the Constitution of India for directing the official

respondents to protect the life and liberty of the petitioners.

It is the case of the petitioners that they both are major

inasmuch as petitioner no.1 was born on 21.08.2003 as is apparent from her

Aadhaar Card (Annexure P-1) and petitioner no.2 was born on 07.03.1987

as is apparent from his Aadhar Card (Annexure P-2), and have married each

other on 29.05.2022, with their free consent and without any pressure.

Reliance has been placed upon the Nikha Nama (Annexure P-1). It is also

stated by the learned counsel for the petitioners that a detailed

representation dated 31.05.2022 (Annexure P-4) has also been given to

respondent no.2 with regard to the same.

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Learned counsel for the petitioners have submitted that

petitioner no.2 was earlier married and there is no legal divorce taken by

petitioner no.2 from his earlier wife, i.e. respondent no.7. It is further

submitted that the petitioners belong to muslim religion and under the

muslim religion, petitioner no.2 can have four wives at one time.

Notice of motion to respondents Nos.1 to 3 only.

On advance notice, Mr. Praveen Bhadu, AAG, Haryana,

appears and accepts notice on behalf of respondents Nos.1 to 3 and has

stated that he has no objection in case respondent no.2 is directed to look

into the representation of the petitioners on the aspect of threat perception

and to take appropriate action, in accordance with law.

This Court has heard learned counsel for the parties.

Learned counsel for the petitioners has placed reliance upon the

judgment of Division Bench of this Court dated 03.09.2021 passed in LPA-

769-2021 titled as "Ishrat Bano and another vs. State of Punjab and

others". Ishrat Bano (petitioner therein) had filed Criminal Writ Petition

no.7903 of 2021 which was dismissed by the learned Single Judge of this

Court. The relevant portion of the order passed by the learned Single Judge

dated 01.09.2021 is reproduced hereinbelow:-

"Prayer in this writ petition is for issuance of a direction to the official respondents to protect the life and liberty of the petitioners at the hands of respondents No.5 to 9.

Counsel for the petitioners has argued that the petitioners have performed the marriage and are apprehending threat to their life and liberty at the hands of respondents No.5 to 9. It is further submitted that previously, the petitioner No.2 was married to one Alia Hasan and the marriage was annulled by way of divorce documents dated 26.07.2018, 27.08.2018 and 27.09.2018 i.e. vide

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03 divorce deeds executed by petitioner No.2 - Aslam Khan himself.

A perusal of these 03 divorce deeds relied upon by the petitioners reveals that these are one sided documents prepared by petitioner No.2 and there are two common witnesses namely Shehnaz Ali and Feroz Khan. There is no signature of the first wife of petitioner No.2 namely Alia Hasan, giving her consent to such divorce. Even otherwise, a perusal of these divorce deeds further reveal that the marriage of petitioner No.2 was performed with Alia Hasan on 06.07.2013 and out of the said wedlock two daughters namely Sohalia Aslam and Amima Aslam were born, who are alive and residing with the first wife of petitioner No.2 i.e. Alia Hasan.

Counsel for the petitioners has further argued that after this one sided customary divorce, the petitioner No.2 has now performed marriage with petitioner No.1 on 20.08.2021. The Co- ordinate Bench while taking up this petition has directed the petitioners to inform the Court as to how much amount, the petitioner No.2 is ready to give to his earlier wife to enable her to maintain herself.

Despite taking 02 dates, no such proposal has come. This Court cannot ignore the fact that the Court being legal guardian of the 02 minor girls, who are living at the mercy of their mother - Alia Hasan, as the petitioner No.2 is not only claiming to have divorced his first wife Alia Hasan but he has also refused to maintain and take care of the upbringing of his 02 minor daughters aged 4½ years and 02 years.

On the face of it, the present petition is nothing but a ploy to seek a seal of this Court regarding the lustful and adulterous life of petitioner No.2 with petitioner No.1 and the Court cannot be a party to the same. The arguments of petitioner No.2 that he has a right to perform second marriage under Muslim Law is misconceived as this Court instead of taking an academic view is more concerned about the welfare of 02 minor girls as it is clear that petitioner No.2 has intentionally failed to maintain his first wife and 02 minor daughters.

Accordingly, the present petition is dismissed with Rs.1,00,000/- costs to be paid to Alia Hasan."

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A perusal of above would show that since the Court had

primarily observed that the divorce documents were one sided documents,

thus, prima-facie it appeared that the divorce was not legal. The matter was

taken up in appeal and the Division Bench of this Court vide judgment

dated 03.09.2021 passed in LPA-769-2021 titled as "Ishrat Bano and

another vs. State of Punjab and others" held as under:-

"The aspect which we are considering and dealing with is with regard to the threat to the life and liberty to the appellants as has been asserted by them. No doubt, in case a criminal case is registered against any of the parties, the law should take its own course, however, the life and liberty of any person who has approached the Court with such a grievance need to be taken care of and the protection be provided as permissible in law. No person can be permitted or allowed to take law in his hands and therefore, keeping in view the said aspect, we dispose of the present appeal by observing that the Senior Superintendent of Police, Maler Kotla, shall take into consideration the representation dated 17.08.2021 (Annexure P-5) submitted by the appellants and if some substance is found therein, take appropriate steps in accordance with law to ensure that the life and liberty is not jeopardized of the appellants at the hands of the private respondents. This direction shall not be construed in any manner to restrain the official respondents to proceed against the appellants in case there is some criminal case registered against them. The law shall take its own course and it shall be open to the authorities/investigating agency to proceed against the appellants, if required in law and in accordance thereto."

Thus, the Division Bench after considering the aspect of

protection of life and liberty being of paramount consideration and without

getting into the issue as to whether the relationship between the parties was

legal or not, even in spite of the fact that there is a criminal case registered

against the parties, however, granted them protection.

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In view of the same, it goes without saying that protection of

life and liberty is a basic feature of the Constitution of India. Every person,

more so, a major, has right to live his / her life with a person of his / her

choice at any rate whenever this Court, prima-facie, is satisfied that on

account of some relatives/ persons being unhappy with the relationship

between the petitioners could cause harm to the life and liberty of the

petitioners, and in such circumstances, the Courts are then required to pass

necessary directions for their protection.

Keeping in view the abovesaid facts and circumstances and

without commenting upon the legality of the relationship or expressing any

opinion on merits of the case, this Court deems it appropriate to dispose of

the present petition with a direction to respondent no.2 to consider the

representation dated 31.05.2022 (Annexure P-4) and to assess the threat

perception to the petitioners and after considering the same, respondent

No.2 shall take appropriate action in accordance with law.

Accordingly, the petition stands disposed of with abovesaid

directions.

It is, however, clarified that this order shall not debar the State

from proceeding against the petitioners, if involved in any other case.

(VIKAS BAHL) JUDGE June 02, 2022.

Davinder Kumar



                 Whether speaking/reasoned         Yes/No
                 Whether reportable                Yes/No




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