Manish Sharma S/O Late Shri ... vs State Of Rajasthan
2022 Latest Caselaw 3901 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

      S.B. Criminal Miscellaneous (Petition) No. 4507/2022

1.    Manish Sharma S/o Late Shri Satyanarayan Sharma,
      Aged About 24 Years, R/o Ward No.1, Teekampura, Police
      Station Jamwaramgarh, District Jaipur (Raj.).
2.    Pooja Sharma D/o Shri Gajnand Sharma, W/o Manish
      Sharma, Aged About 21 Years, R/o- Kuyi Ki Dhani,
      Dheengpur,       Labana,         Tehsil       Amer,      Police     Station
      Chandwaji, District Jaipur(Raj.)
                                                                ----Petitioners
                                  Versus
1.    State Of Rajasthan, Through Its Public Prosecutor.
2.    The Director General Of Police, Rajasthan, P.h.q. Lalkothi,
      Jaipur (Raj.)
3.    The Superintendent Of Police, Jaipur Rural (Raj.).
4.    The    Station    House        Officer      (S.h.o.),    Police     Station
      Chandwaji, Tehsil Amer, District Jaipur(Raj.).
5.    Sita Ram Sharma S/o Shri Lattoor Lal Meena, R/o- Kuyi Ki
      Dhani, Dheengpur, Labana, Tehsil Amer, Jaipur(Raj.).
6.    Deepak Sharma S/o Shri Satyanarayan Sharma, R/o-
      Kuyi   Ki   Dhani,       Dheengpur,           Labana,      Tehsil    Amer,
      Jaipur(Raj.).
7.    Vikas Sharma S/o Shri Babu Lal Sharma, R/o- Kuyi Ki
      Dhani, Dheengpur, Labana, Tehsil Amer, Jaipur(Raj.).
8.    Gajanand Sharma S/o Shri Hanuman Sahay Sharma, R/o-
      Kuyi   Ki   Dhani,       Dheengpur,           Labana,      Tehsil    Amer,
      Jaipur(Raj.).
9.    Manish Kumar Sharma S/o Shri Gajanand Sharma, R/o-
      Kuyi   Ki   Dhani,       Dheengpur,           Labana,      Tehsil    Amer,
      Jaipur(Raj.).
10.   Smt. Santosh Devi W/o Shri Gajanand Sharma, R/o- Kuyi
      Ki Dhani, Dheengpur, Labana, Tehsil Amer, Jaipur(Raj.).
11.   Prabath     Sharma         S/o       Siya      Ram       Sharma,      R/o-
      Harnathpura, Niwaru Road, Jaipur(Raj.).
12.   Mamta Devi W/o Prabath Sharma, R/o- Harnathpura,
      Niwaru Road, Jaipur(Raj.).
13.   Guddu Sharma S/o Siya Ram Sharma, R/o- Harnathpura,


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        Niwaru Road, Jaipur(Raj.).
14.     Malchand      Sharma          S/o      Siya      Ram      Sharma,     R/o-
        Harnathpura, Niwaru Road, Jaipur(Raj.).
15.     Gajanan S/o Shri Kajarmal Sharma, R/o- Ward No. 1,
        Teekempura, Bhanpur Kala, Jaipur(Raj.).
16.     Sita Ram Sharma S/o Gajanan, R/o- Ward No. 1,
        Teekempura, Bhanpur Kala, Jaipur(Raj.).
17.     Rajesh      Sharma       S/o     Gajanan,         R/o-    Ward    No.   1,
        Teekempura, Bhanpur Kala, Jaipur(Raj.).
18.     Priyanka Devi W/o Sita Ram Sharma, R/o- Ward No. 1,
        Teekempura, Bhanpur Kala, Jaipur(Raj.).
19.     Sangita Devi W/o Rajesh Sharma, R/o- Ward No. 1,
        Teekempura, Bhanpur Kala, Jaipur(Raj.).
                                                                  ----Respondents

For Petitioner(s) : Mr. Ajay Choudhary For Respondent(s) : Mr. Atul Sharma, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

18/05/2022

1. This criminal writ petition has been filed under Section 482

Cr.P.C. for protection to life and personal liberty of the petitioners.

2. Petitioners are major and they have entered into registered

marriage with each other. They apprehend violation of their right

of privacy and personal liberty at the hands of private respondents

as they are opposing their marriage.

3. The personal liberty and right of privacy is recognised and

protected by catena of judicial pronouncements. One of the same

is case of Navtej Singh Johar Vs. Union of India (2018) 10 SCC 1,

with note that constitutional morality cannot be ignored in face of

social morality. The Hon'ble Supreme Court observed as under:-

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"64....The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State's respect for the capacity of the individual to make independent choices. The right to privacy may be construed to signify that not only are certain acts no longer immoral, but that there also exists an affirmative moral right to do them."

In the said judgment, Hon'ble Mr. Justice Deepak Misra (then CJI), also pointed out the duty of the Courts to be guided by constitutional morality by upholding the values enshrined within the constitution and not succumbing to societal morality.

The said relevant part of the judgment as follows:

"119. The duty of the constitutional courts is to adjudge the validity of law on well- established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception.

The Court has to be guided by the

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conception of constitutional morality and not by the societal morality.

120. We may hasten to add here that in the context of the issue at hand, when a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy like ours where the rule of law prevails, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number.

121. In this regard, we have to telescopically analyse social morality vis- a-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that

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constitutional morality prevails over social morality."

4. Considering the constitutional right of the petitioners, let the

State respondents ensure protection of the personal life and

liberty of the petitioners.

5. With the aforesaid observations, petition stands disposed of.

6. Stay application also stands disposed of.

(BIRENDRA KUMAR),J

ashu /73

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