Rajasthan High Court - Jodhpur
Gorkha Ram vs The State Of Rajasthan ... on 4 December, 2024
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
[2024:RJ-JD:49451-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus Petition No. 467/2024
Gorkha Ram son of Likhmaram, aged about 24 years, resident of
Mokhawa, Tehsil Guda Malani, District Barmer, Rajasthan,
currently residing near Apna Bazar, P.S. Basni Jodhpur,
Rajasthan.
----Petitioner
Versus
1. The State of Rajasthan, through the Secretary, Ministry of
Home Affairs, Government of Rajasthan, Jaipur.
2. The Superintendent of Police, Barmer Rural.
3. Additional Commissioner of Police, Jodhpur West, Jodhpur,
Rajasthan.
4. The Deputy Superintendent of Police, District Barmer
Rural.
5. The Station House Officer, P.S. Gudamalani, District
Barmer.
6. Chanani daughter of Likhmaram, aged about 32 Years,
resident of Mokhawa, Tehsil Guda Malani, District Jodhpur,
Rajasthan.
7. Pukhraj son of Shantaram Ji, aged about 35 Years,
resident of Village Bhand, Tehsil Gudamalani, District
Barmer, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Pradeep Khichi, Advocate
For Respondent(s) : Mr. N.K. Gurjar, GA-cum-AAG
Mr. Ladhuram, H.C. 79, P.S.
Gudamalani
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE MADAN GOPAL VYAS Order 04/12/2024 Per, Shree Chandrashekhar, J.
Gorkha Ram son of Likhmaram aged about 24 years has filed this habeas corpus petition seeking a direction upon the State authorities for production of 'X' in the Court; 'X' is aged about 32 years.
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2. In this writ petition, the petitioner states that 'X' is a married woman and a divorce petition has been filed by her in the Family Court at Jodhpur (Metropolitan) on the ground of physical and mental cruelty. The petitioner has also described in the writ petition various acts of torture and harassment inflicted upon 'X' by her husband. The petitioner admits that 'X' is a major and further states that she had a live-in relationship with him. In support of this petition, the petitioner has produced a copy of live- in relationship agreement dated 2nd February 2024 which according to him has been executed by 'X' out of her free will.
3. The relevant paragraphs in the writ petition are reproduced hereinunder :-
"2. That it is pertinent to mention here that the corpus is major girl. The Corpus and petitioner are in love and she wants to get married with the present petitioner. Earlier also the Corpus had left her home twice to live with the present petitioner and for some time they also lived together. Since the corpus was already married to Respondent No.7, therefore, in order to legal reside together they executed a document with respect to their intent to live together, in a live-in relationship. It is also pertinent to mention here that corpus has also filed a divorce petition against the Respondent No.7. before Family Court. Jodhpur Metropolitan on the ground of physical and mental cruelty Since, before adjudication of the Divorce Petitioner and the Corpus could not have gotten married thus, they executed an agreement, to live together. A copy of the Live-In-Relationship agreement dtd 02.02.2024, is attached herein with and marked as ANNEXURE-1, A copy of the Divorce Petition filed by the Corpus a/w its registration number is attached herein with and marked as ANNEXURE-2, collectively.
3. That when the husband of the corpus got to know about the same thus in order to get revenge from the Corpus and the present petitioner, he filed a Missing Person Report and look the Corpus away from the petitioner using the tools of law, thereby, illegally abusing the law by misusing it. The husband has committed physical cruelty upon the corpus and assaulted her (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (3 of 13) [HC-467/2024] again and detained her In his home Corpus somehow got her hands on a phone and communicated the same with the petitioner and asked him to protect her from her husband.
4. That the respondent No. 7 has detained the corpus illegally and against the will and wish of the corpus The petitioner tried his best to protect corpus from this marriage but he could not
5. That the corpus is not allowed to go anywhere and locked in the house. Respondent no. 7 has also took away the phone from the corpus so that she can not ask anyone for help her Even though the corpus wants to make a life of her own, her husband is forcing her to remain locked in the house The parents of the corpus are also constantly threatening her liberty and violating her fundamental rights.
6. That the petitioner tried his best to reach higher police authorities to protect the interest of the corpus but due to political and financial powers of respondent no.7 he failed to do the same and now he is left with no option but to seek interference from this Hon'ble Court."
4. A status report dated 3rd December 2024 has been tendered in the Court. In this report; it is stated that 'X' expressed her willingness to stay with her husband Pukhraj and uncle-in-law Bhanwara Ram. We have however not gone into that aspect and the present habeas corpus petition is being decided on the basis of the statements made by the petitioner. We have adopted this course having in our mind the decision in "Kanu Sanyal v. District Magistrate" 1974 SCC (4) 141 wherein the Hon'ble Supreme Court observed that while dealing with a petition for writ of habeas corpus the Court may examine the legality of the detention without requiring the person detained to be produced before it; that was though a case of preventive detention.
5. Mr. Pradeep Khichi, the learned counsel for the petitioner submits that the petitioner in having a live-in relationship with 'X' did not commit any crime and he can very well maintain this (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (4 of 13) [HC-467/2024] habeas corpus petition seeking production of 'X' in the Court on the basis of his relationship with 'X'. The learned counsel for the petitioner referred to a decision of this Court in S.B. Criminal Misc. (Pet.) No.5045 of 2021 titled "Leela & Anr. v. State of Rajasthan & Ors." to support the prayer made in the writ petition.
6. In the said writ petition, a learned Single Judge of this Court made the following observations:-
"21. The Apex Court has laid down in no uncertain terms that the emphasis to be given to public morality is minuscule, when they are in conflict with constitutional morality, and that the Courts must uphold constitutional morality and rely on the same rather than obscure notions of societal morality, which have no legal tenability.
22. In addition to the Courts' responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free- willed adults.
The Hon'ble Supreme Court, in its sterling judgment rendered in K.S.Puttaswamy v. Union of India (2017) 10 SCC 1, held in no uncertain terms that privacy includes at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. The Apex Court in the same pronouncement also laid down that privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.
23. The emphasis on autonomy and privacy was also more specifically dealt with in the ambit of the institution of marriage in Joseph Shine v. Union of India, reported in (2018) 2 SCC
189. Pointing out the institution of marriage not to be a private space devoid of constitutional rights, the Apex Court of India, in the aforesaid judgment, observed thus:
"50. The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (5 of 13) [HC-467/2024] dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution."
24. It is well- settled that it is not in the Court's domain to intrude upon an individual's privacy. Any scrutiny or remark upon the so-called morality of an individual's relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one's right to choice and condone acts of unwarranted moral policing by the society at large.
25. On the question of the extent of protection to the petitioners, it would be prudent to consider the opinion of the Hon'ble Apex Court in Sunil Batra v. Delhi Administration & Others, reported in (1978) 4 SCC 409. Opining on the right to protection invoked by prisoners and convicts, the Hon'ble Supreme Court succinctly laid down that it is the duty of the Supreme court and all other subordinate courts to protect the rights of our country's citizens and that in no way are prisoners and convicts exempt from this.
26. Similarly, while delving into the issue of the increasing number of custodial deaths in India, the Hon'ble Apex Court in D.K. Basu v. State of West Bengal, reported in AIR 1997 SC 610, elaborated upon the scope of Article 21, as follows:
".......If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law."(Downloaded on 20/12/2024 at 10:07:48 PM)
[2024:RJ-JD:49451-DB] (6 of 13) [HC-467/2024] ". . . . The latin maxim salus populi est supreme lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. . . ."
". . . .His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal.
Challenge of terrorism must be met with innovative ideas and approach. State terrorism is not answer to combat terrorism. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. that the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of this human rights expect in the manner permitted by law...."
30. It is sufficiently clear to this Court that the Hon'ble Apex Court's standpoint is that there exists a duty of the State to protect and safeguard all fundamental rights, unless taken away by due process of law. Even if any illegality or wrongfulness has been committed, the duty to punish vests solely with the State, that too in attune with due process of law. In no circumstance can the State bypass due process, permit or condone any acts of moral policing or mob mentality. When the Right to life and liberty is even guaranteed to convicted criminals of serious offences, there can be no reasonable nexus to not grant the same protection to those in an "legal/illegal relationships". (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (7 of 13) [HC-467/2024]
31. Had there been a question before this Court with regards the morality/ legality of live- in relationships and matters connected thereto, then perhaps the answer would have required more deliberation along those lines. However, in the context of the limited question this Court is posed with pertaining to the application of Article 21 of the Constitution of India and it is clear that the right to claim protection under this Article is a constitutional mandate upon the State and can be availed by all persons alike. There arises no question of this right to be waived off even if the person seeking protection is guilty of an immoral, unlawful or illegal act, as per the precedent law cited of the Hon'ble Apex Court. However, in this case, this Court does not wish to delve into the sanctity of relationships.
32. This Court finds itself firmly tied down to the principle of individual autonomy, which cannot be hampered by societal expectations in a vibrant democracy. The State's respect for the individual independent choices has to be held high.
33. This Court fully values the principle that at all junctures constitutional morality has to have an overriding impact upon societal morality.
This Court cannot sit back and watch the transgression or dereliction in the sphere of fundamental rights, which are basic human rights.
The public morality cannot be allowed to overshadow the constitutional morality, particularly when the legal tenability of the right to protection is paramount.
34. This Court is duty bound to act as a protector of the rights of the individuals, which are under siege with the clear intention of obstructing the vision of Constitution.
35. The Hon'ble Apex Court has even gone to the extent of the duty of the courts to protect the rights of prisoners and convicts. The rule of law has to be held at the highest pedestal. The Constitutional right of protection cannot be abridged, except in a manner permitted by law."
7. The learned counsel for the petitioner heavily relied on the aforesaid observations in S.B. Criminal Misc. (Pet.) No.5045 of 2021 to remind this Court that societal morality does not create any legal hurdle in entertaining a habeas corpus petition and (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (8 of 13) [HC-467/2024] issuing a direction to the State-respondents to produce 'X' in the Court. In our opinion, reliance placed on the aforementioned observations to establish locus standi of the petitioner is clearly misconceived. It is well remembered that a decision has to be understood in the context of the facts and circumstances in the case. In "Leela", two adult persons having entered in live-in relationship had approached this Court for police protection. As recorded in paragraph no.10 of the said decision, the petition filed by them was premised on the ground that the right to life is a fundamental right under Article 21 of the Constitution of India. It was the 'emphatic' stand taken by them before the Court that they were not seeking approval of the Court of their relationship; as recorded in paragraph no.12. We may also indicate that various decisions rendered by different High Courts viz. (a) "Simranjeet Kaur & Anr. v. State of Harayan & Ors." CRWP 7799-2021 (O&M) decided by the Hon'ble Punjab and Haryana High Court, (b) "Seema Devi & Anr. v. State of Rajasthan & Ors." S.B. Criminal Misc. Petition No.4796 of 2021 decided by this Hon'ble Court at Jaipur Bench, (c) "Smt. Maya Devi & Anr. v. State of Rajasthan & Ors." S.B. Criminal Misc. Petition No.3314 of 2021 decided by this Hon'ble Court at Jaipur Bench, (d) "Smt. Aneeta & Anr. v. State of U.P. & Ors." Writ-C No.14443 of 2021 decided by a Division Bench of the Hon'ble Allahabad High Court, (e) "Smt. Surabhi v. State of U.P. & Ors." Writ-C No.5455 of 2021 decided by a Division Bench of the Hon'ble Allahabad High Court, (f) "Gulza Kumari & Anr. v. State of Punjab & Ors." CRWP No.4199 of 2021 (O&M) decided by the Hon'ble Punjab and Haryana High Court, (g) "Moyna Khatun & Anr. v. State of Punjab & Ors." CRWP No.2421 of 2021 decided by (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (9 of 13) [HC-467/2024] the Hon'ble Punjab and Haryana High Court and (h) "Daya Ram & Anr. v. State of Haryana & Ors." decided by the Hon'ble Punjab and Haryana High Court and the decision of the High Court of Rajasthan at Jaipur Bench in "Rashika Khandal & Anr. v. State of Rajasthan & Ors." rendered in S.B. Criminal Misc. Petition No.3023 of 2021 were produced before the writ Court to oppose the said Criminal Miscellaneous Petition on the ground that live-in relationship with an already married person is illegal and that the freedom of life has to be within the bounds of law.
8. However, the learned Single Judge of this Court referred to the decision in "Navtej Singh Johar v. Union of India" (2018) 10 SCC 1 wherein the Hon'ble Supreme Court observed that the Courts are to be guided by Constitutional morality and not by the societal morality and as the final arbiter of the Constitution it has to uphold the cherished principles of the Constitution and not to be even remotely guided by the majoritarian or popular perception. Just to indicate, "Navtej Singh Johar" had laid a challenge to a provision under section 377 of the Indian Penal Code as being violative of fundamental rights and therefore the observations made therein have to be understood in the context of the issue before the Court. In "Leela", the learned Single Judge also referred to the decision in "Shafin Jahan v. Asokan K.M." (2018) 16 SCC 408, "K.S. Puttaswami v. Union of India" (2017) 10 SCC 1, "Joseph Shine v. Union of India" (2018) 2 SCC 189 and other decisions but ultimately left the matter to the discretion of the SHO of the police station observing as under :-
"37. Thus, in view of the above, the present petition is disposed of, with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (10 of 13) [HC-467/2024] alongwith appropriate representation regarding their grievance. The Station House Officer, Police Station, Feench, Luni, District Jodhpur shall in turn hear the grievance of the petitioners, and after analyzing the threat perceptions, if necessitated, may pass necessary orders to provide adequate security and protection to the petitioners."
9. The decision in "Devu G Nair v. State of Kerala & Ors." (2023) 12 SCC 829, on which the learned counsel for the petitioner placed reliance, discussed the freedom of choice of two adult females to live in an intimate relationship (LGBTQ+community). The learned counsel for the petitioner referred to the guidelines issued by the Hon'ble Supreme Court in paragraphs no.16 (b) and (j) to submit that in evaluating the locus standi of the petitioner the Court need not make a roving enquiry into the precise nature of the relationship and, that, the Court must acknowledge that some intimate partnership may face social stigma. In paragraph nos. 16 (b) and (j), the Hon'ble Supreme Court issued the following directions :-
"b. In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person;
j. The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;"
10. The judgment in "Devu G Nair" is also not applicable in the facts of this case. The present case is not about a simple live-in (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (11 of 13) [HC-467/2024] relationship between two adults. The live-in relationship agreement dated 2nd February 2024 reveals a glaring fact that the petitioner and 'X' appear to be real brother and sister. Even the description of parties as stated in the memo of parties describes the petitioner as son of Likhmaram and 'X' as the daughter of Likhmaram.
11. The expression locus-standi is a Latin term that means "place of standing" and refers to the legal right of a person to bring a law suit or to participate in a legal proceeding. It ensures that only those with a genuine connection to the legal issues or legal rights are allowed to participate in the legal process. The writ of habeas corpus has always been looked upon as an effective means to ensure release of the detained person and any emotional or intellectual concern shall not of itself confer a standing on a person to maintain a habeas corpus petition. The traditional doctrine of locus-standi has no doubt been relaxed where a writ of habeas corpus is prayed for and the strict rule of pleadings can also be dispensed with but, in no case, a person who claims live-in relationship with a married woman who is his own sister and makes a vague statement that 'X' is under illegal confinement of her husband and uncle-in-law can maintain a habeas corpus petition. Plainly speaking, there is no fundamental right of a person to have a live-in relationship with a woman legally married to another man and, more particularly, when the woman appears to be his own sister. In our opinion, there is no fundamental right not even the right guaranteed under Article 21 of the Constitution of India that would provide a standing for the petitioner to maintain this habeas corpus petition. The (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (12 of 13) [HC-467/2024] Constitution of India or any other law in India does not sanctify an immoral act. The live-in relationship allegedly entered into between the petitioner and 'X' has no legal sanctity and must be held void ab initio in view of the provisions under section 23 of the Indian Contract Act. We do not nurture a doubt even for a second that a petition seeking protection to life at the instance of any citizen of this country or even a foreign national notwithstanding his character, antecedents, etc. shall be maintainable by him or at his instance but a habeas corpus petition by a person like the petitioner seeking production of 'X' in the Court is not maintainable. We are of the considered opinion that the debate on constitutional morality vis a vis societal morality was addressed by the Hon'ble Supreme Court in "Navjot Singh Johar" in a different context and the observations made therein do not sanctify the relationship of the petitioner with 'X'.
12. The powers under Article 226 of the Constitution are exercised for public good and in the public interest. Though the powers under Article 226 of the Constitution are plenary in nature, the writ Court exercises such powers in furtherance of the public interest having regard to the attending circumstances in the case. In our opinion, the writ Court cannot exercise its extraordinary discretionary powers in a matter which would only sanctify immorality in the society. May be the offence of adultery is not attracted against a woman, the very purpose of conferring high prerogative writs to the High Courts by the framers of the Constitution would be lost if this Court entertains this habeas corpus petition on the plea that the petitioner by living an adulterous relationship with a married woman did not commit a (Downloaded on 20/12/2024 at 10:07:48 PM) [2024:RJ-JD:49451-DB] (13 of 13) [HC-467/2024] crime. This is too well settled a proposition in law that in appropriate cases the writ Court may refuse to entertain a writ petition even where some contentious issues are raised or an arguable point has been made out.
13. Having regard to the facts so stated in this writ petition, the present D.B. Habeas Corpus Petition No.467/2024 is dismissed with a cost of Rs.10,000/- to be deposited with the Government Blind School, Jodhpur within a period of four weeks, failing which the Office shall register a suo moto contempt case against the petitioner.
(MADAN GOPAL VYAS),J (SHREE CHANDRASHEKHAR),J 58-Arjun/-
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