Jammu & Kashmir High Court
Fozia Kosser And Anr. vs State And Ors. on 17 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
OWP No. 1907/2017, MP No. 01/2017
Date of order:-17.11.2017
Fozia Kosser and anr. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For Petitioner/Appellant(s) : Mr. A.A Khan, Advocate.
For respondent (s) : Mr. Ahtsham Bhat, GA.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. The case of the petitioners is that they are major and they disclosed the fact
to their respective parents and requested them for contracting marriage
between the petitioners to which the father and uncle of petitioner No. 1
and brother and bhabhi of petitioner No. 2 got annoyed with the petitioners.
Constrained by the above mentioned situation both the petitioners being
major and capable of understanding their well-being on 20.09.2017
performed/contracted marriage in accordance with Muslim Shariet Law.
The petitioners have solemnized their marriage with each other out of free
will, pressure, coercion and undue influence from any quarter. Thereafter,
petitioner No. 1 joined the company of the petitioner No. 2 as his legally
wedded wife. After the solemnization of the marriage between the
petitioners, respondent No. 5 to 8 had made the lives of the petitioners
miserable as both of them had married against the wishes of respondent
Nos. 5 to 8. The marriage between the petitioners is not acceptable to them.
The petitioners are innocent and have solemnized the marriage with their
own choice. The movements of the petitioners have been restricted in view
of the continuous harassment and threat perception at the hands of
OWP No. 1907/2017 Page 1 of 4
respondent Nos. 5 to 8 as they have openly declared that they will kill both
the petitioners in order to satisfy their ego. The petitioners are innocent and
have contracted the marriage with their own choice and aggrieved of the
unnecessary threats and harassment made by respondent Nos. 5 to 8.
2. They have proceeded to state that their movement has been restricted due to
the continuous harassment meted out to them at the hands of the respondent
Nos. 5 to 8. They have also stated that the threat perception looms large on
their heads, as the respondent Nos. 5 to 8 and their relatives have openly
declared that they will do away with their lives.
3. The petitioners, in person, appeared before this court at the time of hearing
of the petition along with their counsel. They have categorically stated in
the open Court that they have solemnized marriage with each other and
have also executed Nikahnama on 20.09.2017 with their own free will and
consent, and without any force from anybody.
4. During the course of argument, learned counsel for the petitioners, has
stated that the petitioners would be satisfied, if this petition is disposed of at
this stage by directing official respondents to provide adequate protection
from the harassment at the hands of respondent Nos.5 to 8.
5. I have considered the submissions of learned counsel for the petitioners.
6. From the perusal of petition, it is evident that this petition has been
supported by an affidavit. There is a photo-copy of Date of Birth of
petitioner No.1 and also Aadhar Card. In these documents, the date of birth
of petitioner No.1 is 06.03.1998. The date of birth of petitioner No.2 is
reflected as 26.02.1994 as per Aadhar Card issued by the Govt. of India.
Nikahnama has been solemnized on 20.09.2017. So petitioners were major
at the time of solemnization of Nikahnama.
OWP No. 1907/2017 Page 2 of 4
7. In similar circumstances where parties had entered into wedlock of their
own free will and volition, the Hon'ble Supreme Court in Lata Singh v.
State of UP and anr, AIR 2006 SC 2522 has held as under:
"14. This case reveals a shocking state of affairs. There is no dispute that
the petitioner is a major and was at all relevant times a major. Hence she
is free to marry anyone she likes or live with anyone she likes. There is no
bar to an inter-caste marriage under the Hindu Marriage Act or any other
law. Hence, we cannot see what offence was committed by the petitioner,
her husband or her husband's relatives...........................................
..............................................................
17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law."
8. Mr. A.H. Bhat, learned GA, is appearing on behalf of the official respondents and states that he has no objection if the petition is disposed of at this stage.
9. In view of the above, this petition is, accordingly, disposed of at this stage, with a direction that the official respondent Nos. 1 to 4 shall ensure the OWP No. 1907/2017 Page 3 of 4 protection of life and liberty of the petitioners and shall take appropriate steps strictly in accordance with the ratio of judgment (supra).
(Sanjay Kumar Gupta) Judge Jammu 17.11.2017 Shivalee OWP No. 1907/2017 Page 4 of 4