Amandeep Kaur And Another vs State Of Punjab And Others
2022 Latest Caselaw 13845 P&H

CRWP-10328-2022                                                          -1-

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                                  CRWP-10328-2022
                                                  Date of decision : 01.11.2022

Amandeep Kaur and another

                                                        ...Petitioners

                                         Versus

State of Punjab and others

                                                      ...Respondents

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:     None.
             ****

VIKAS BAHL, J. (ORAL)

Today, the Lawyers have decided to abstain from appearing in

the Court because of the call given by the Bar Association.

The present Criminal Writ Petition has been filed under Article

226 of the Constitution of India for issuance of direction to respondent

nos.2 and 3 to protect the life and liberty of the petitioners.

Petitioner no.1 is stated to be born on 01.01.1990 and for this

purpose, reference has been made to her Aadhar card (Annexure P-1).

Petitioner no.2 is stated to have been born on 13.03.1995 and for the said

purpose, reference has been made to his Aadhar card (Annexure P-2). It is

further stated that the petitioners are major and in a "Live in Relationship". It

is the case of the petitioner no.1 that she was earlier married to Jaswinder

Singh on 25.03.2022 and the daughter born out of the said wedlock is

residing with petitioner no.1. It is the case of petitioner no.2 that he was

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earlier married to Harbhinder Kaur and he is not residing with said Harbinder

Kaur. No legal divorce has been taken by petitioner no.1 and petitioner no.2

from their respective spouse. It is stated that the petitioners are residing with

each other out of their free will and consent. The petitioners have given a

representation dated 25.10.2022 (Annexure P-3) to respondent no.2 praying

for protection of their life and liberty.

This Court has perused the paper book.

A co-ordinate Bench of this Court has passed the order dated

03.09.2021 in CRWP-7874-2021 titled as "Paramjit Kaur and another vs.

State of Punjab and others" as per which although the divorce petition filed

by petitioner no.2 therein was dismissed, yet this Court had granted

protection to the petitioners.

A co-ordinate Bench of this Court in judgment dated 18.05.2021

passed in CRWP-4521-2021 titled as "Pardeep Singh and another vs. State

of Haryana and others" has granted protection in a case where the

petitioners were living in "Live in Relationship".

In Pardeep Singh's (supra), a co-ordinate Bench of this Court

has held as under:-

"The Constitution of India is the Supreme Law of the land. Right to life and liberty is enshrined therein and is treated as a basic feature. The said right includes the right of an individual to full development of his/her potential in accordance with his/her choice and wish and for such purpose, he/she is entitled to choose a partner of his/her choice. The individual also has the right to formalize the relationship with the partner through marriage or to adopt the non-formal approach of a live-inrelationship. The concept of live-in-relationships has crept into our society from western nations and initially, found acceptance in the metropolitan

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cities, probably because, individuals felt that formalization of a relationship through marriage was not necessary for complete fulfillment. Education played a great role in development of this concept. Slowly, the concept has percolated into small towns and villages also as is evident from this petition. This shows that social acceptance for live-in-relationships is on the increase. In law, such a relationship is not prohibited nor does it amount to commission of any offence and thus, in my considered view such persons are entitled to equal protection of laws as any other citizen of the country. The law postulates that the life and liberty of every individual is precious and must be protected irrespective of individual views.

Let us examine the issue from another view-point. The Constitutional Courts grant protection to couples, who have married against the wishes of their respective parents. They seek protection of life and liberty from their parents and family members, who disapprove of the alliance. An identical situation exits where the couple has entered into a live-in-relationship. The only difference is that the relationship is not universally accepted. Would that make any difference ? In my considered opinion, it would not. The couple fears for their safety from relatives in both situations and not from the society. They are thus, entitled to the same relief. No citizen can be permitted to take law in his own hands in a country governed by Rule of Law.

The petition is accordingly, disposed of with direction to respondent No.2 to consider the representation dated 9.5.2021 (Annexure P3) and to provide appropriate protection, if found necessary. It shall be ensured that no harm comes either to the lives or liberty of the petitioners."

Thus, this Court is of the view that even if the petitioners are

living in a "Live in Relationship", they are entitled to protection of life and

liberty.

With respect to petitioner no.1 and petitioner no.2 not being

legally divorced from their spouse, it is relevant to refer to a judgment of the

Division Bench of this Court dated 03.09.2021 passed in LPA-769-2021 titled

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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 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.

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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."

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

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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, however, granted them protection of life and liberty.

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 the 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, then in

such circumstances, the Courts are 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 25.10.2022 (Annexure P-3) 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.

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Accordingly, the petition stands disposed of with above said

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
November 01, 2022
Davinder Kumar




                 Whether speaking/reasoned:-              Yes/No
                 Whether reportable:-                     Yes/No




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