Rajasthan High Court
Smt. Payal Sharma D/O Sh. Sharad ... vs State Of Rajasthan on 20 May, 2022
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 4384/2022
1. Smt. Payal Sharma D/o Sh. Sharad Sharma W/o Rajat
Ruchwani, Aged About 19 Years, Resident Of 865, Bagru
Walo Ka Rasta, Chandpol Bazar, Jaipur.
2. Rajat Ruchwani S/o Sh. Prakash Ruchwani, Aged About
28 Years, Resident Of 29A, Nahri Ka Naka, Vivekanand
Gali, Behind Khetri House, Jaipur.
----Petitioners
Versus
1. State Of Rajasthan, Through Its Public Prosecutor.
2. The Director General Of Police, Rajasthan, Jaipur.
3. The Commissioner Of Police, Jaipur.
4. S.h.o. Police Station, Sanjay Circle, Jaipur.
5. S.h.o. Police Station, Shashtri Nagar, Jaipur.
6. S.h.o. Police Station, Kotwali, Jaipur.
7. Omkar Singh Katheriya S/o Sh. Ramesh Chand Katheriya,
8. Savita Sharma W/o Sh. Omkar Singh Katheriya,
9. Poonam Sharma D/o Late Sh. Sharad Sharma,
Respondent Nos. 7 to 9 are Resident Of Data House, Near
Raj Medical Hall, Chandpol Bazar, Jaipur,
10. Udaibhan Singh Katheriya, S/o Sh. Ramesh Chand
Khateriya,
11. Abhayraj Singh Katheriya S/o Sh. Ramesh Chand
Katheriya,
respondent Nos. 10 and 11 are Resident Of Pakhna Vihar,
Distt. Farrukhabad, Uttar Pradesh.
----Respondents
For Petitioner(s) : Mr. Nishant Sharma
For Respondent(s) : Mr. Ghan Shyam Singh Rathore GA
cum AAG
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
20/05/2022
(2 of 4) [CRLMP-4384/2022]
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 respondent
as he is 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
(3 of 4) [CRLMP-4384/2022]
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,
(4 of 4) [CRLMP-4384/2022]
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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