Divya Badolya, D/O- Shri Ramphool ... vs State Of Rajasthan
2022 Latest Caselaw 3950 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

      S.B. Criminal Miscellaneous (Petition) No. 4462/2022

1.     Divya Badolya, D/o- Shri Ramphool Badolya, W/o- Jai
       Kishan Khudaniya, Aged About 20 Years, R/o-Nayla,
       Jaipur, Raj. At Present Residing At 42/59/10, Varun Path,
       Mansarovar, Jaipur, Raj.
2.     Jai Kishan Khudaniya, S/o- Shri Tara Chand Khudaniya,
       Aged    About     26     Years,       R/o-42/59/10,        Varun    Path,
       Mansarovar, Jaipur, Raj.
                                                                  ----Petitioners
                                   Versus
1.     State Of Rajasthan, Through P.p.
2.     Commissioner Of Police, Jaipur Metropolitan Jaipur, Govt.
       Hostel, Commissionarate, Jaipur.
3.     Station House Officer, Police Station Mansarovar, Jaipur
       Metropolitan Jaipur.
4.     Ramphool Badolya, S/o-Shri Harinarayan Badolya, Aged
       About 40 Years, R/o-Nayla, Jaipur, Raj.
5.     Smt. Sunita, W/o- Shri Ramphool Badolya, Aged About 36
       Years, R/o- Nayla, Jaipur, Raj.
6.     Jagdeesh Badolya, S/o-Shri Harinarayan Badolya, Aged
       About 38 Years, R/o-Nayla, Jaipur, Raj.
7.     Jagdeesh Kotiya, S/o- Shri Prabhat Kotiya, Aged About 48
       Years, R/o- Govind Nagar-A, Govindpura, Jaipur, Raj.
8.     Pritesh Kotiya, S/o- Shri Jagdeesh Kotiya, Aged About 26
       Years, R/o- Govind Nagar-A, Govindpura, Jaipur, Raj.
                                                                ----Respondents

For Petitioner(s) : Mr. Pradeep Sharma for Mr. Manish Sharma For Respondent(s) : Mr. G.S. Rathore GA cum AAG

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

19/05/2022

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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 marriage

with each other. Supporting documents of their marriage is on the

record. 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:-

"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

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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 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,

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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 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 /5

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