Sabreena Sofi & Anr. v. Union Territory of J&K & Ors.

Through: Ms. Asifa Padroo, AAG. CORAM: HON’BLE THE CHIEF JUSTICE ORDER 24.05.2022

The petitioners alleged that they are both majors and have entered into the marital and congenial relationship with each other voluntary on

16.12.2021 and in that regard a Nikah Nama as well as the marriage agreement was also executed. They further allege that the private respondent No. 6 with the help of Police officials i.e. respondents 1 to 5 are unlawfully interfering in their married life and are causing unnecessary harassment.

The petitioners the above background have invoked extraordinary jurisdiction of this Court, seeking their protection and direction upon the respondents not to interfere in their peaceful married life.

The factum of the petitioners being of marriageable age or about the validity of their marriage cannot be adjudicated simply on the basis of evaluation of affidavits, especially when no certificate of registration of marriage which is compulsory under the Special Marriage Act has been brought on record. Nonetheless as right of marriage has been recognized as a right to life under Article 21 of the Constitution of India vide “Lata Singh vs State of U.P & anr” AIR 2006 SC 2522, and it has been observed that persons of marriageable age are free to marry anyone of their choice and to live an independent married life and as such entitled to protection, if they are legally and validly married.

In such a situation when any disturbance is created in the married life of a couple by either the private parties or the state authorities or by the private parties with the help of state authorities, the normal course open to the victims is to make a complaint and to lodge an F.I.R whereupon the court will order investigation or police will swing into action, investigate the matter and provide adequate protection, if necessary. On the other hand where the parents of either of the parties allege that marriage is not valid for certain reasons or that the parties to the marriage are minor or that the girl has been kidnapped or there is likelihood of the marriage being used as a disguise for immoral purpose, they can also lodge a complaint or F.I.R. with the police whereupon again the matter would be investigated and offenders punished in accordance with law.

The petition is completely silent regarding any complaint of F.I.R or F.I.R being lodged by the petitioners.

I have dealt with hundreds of such similar and identical cases as a Judge of the Allahabad High Court and one of the judgments in this regard has been rendered therein the case of “Pooja and ors. vs State of U.P and Ors” (2013) ILR 2 ALL 679 : 2013 (5) ALJ 354. In the said judgment after observing as above the court relegated the petitioners to the police authorities who were directed to provide protection to them, subject to prima facie satisfaction of their marriage.

In view of the above circumstances, there is no occasion for the petitioners to invoke the writ jurisdiction of this court directly as their grievance can be satisfied by making a complaint or lodging F.I.R. with the local police or by approaching the Superintendent of Police or Senior Superintendent of Police concerned who is supposed to take steps as per the law laid down above.

The practice of straight away approaching this Court without raising their grievance in writing before the authorities below is not appreciable rather deprecated.

In view of the aforesaid facts and circumstances, the writ petition is disposed of with liberty to the petitioners to approach the concerned Superintendent of Police or Senior Superintendent of Police and to appraise him of the disturbance by outsiders in their married life and in case it is so done, the police authorities would ensure that they are not put to any threat or torture and their married life is not disturbed provided they are prima facie found to be of marriageable age and married in accordance with law and further that they are not wanted or involved in any case in connection with the above marriage or living together.

This order would not be treated by any authority as a certificate of marriage between the parties.