The Punjab and Haryana High Court last week addressed the conflict between the enforcement of fundamental rights to seek protection of "life and liberty" as enshrined under Article 21 viz-a-viz a conceded violation of Section 5 (iii) of the Hindu Marriage Act, 1955.
Justice Arun Monga was dealing with a writ petition of a girl aged 26 years 11 months and a boy aged 20 years and 08 months, claiming to have married each other, purportedly being in love with each other. The Petitioners, who got married on July 2 at a Gurudwara in Amritsar according to Sikh Rites and Ceremonies, state that "immediately after their marriage, their family members have issued threats to them that they will kill them both by tracing them from wherever they are". Hence, they moved the court seeking appropriate directions to the official respondents to provide protection qua their life and liberty.
"Without going into the merits of the validity of the marriage, I am of the view that every citizen being entitled to enforcement of fundamental rights as envisaged under Constitution of India, would necessarily entail grant of appropriate protection to the petitioners herein qua their life and liberty", observed the Single bench at the outset.
Being conscious of the fact that even though the girl is major, the boy is "neither major nor of marriageable age", the Single Judge noted that their marriage, therefore, even if assumed to have taken place according to Sikh Rites is in violation of Section 5 (iii) of the Hindu Marriage Act.
The Court appreciated that Section 5 envisages statutory pre-requisites for the consenting parties to solemnize marriage between them. Sub Section (iii) thereof stipulates the minimum ages of a bridegroom and a bride:"Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
... (iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of[eighteen years] at the time of the marriage; ..."
"A perusal of Section 5, ibid leaves no manner of doubt that one of the essential conditions of Hindu Marriage Act is that the bridegroom must be above 21 years and the bride above 18 years", stated the Court.
However, at the same time, it proceeded to observe that Section 11 of the Hindu Marriage Act declares certain marriages, which are in contravention of Section 5, to be void, but precludes a marriage solemnized in contravention of Sub Section (iii) of Section 5, from the purview of being regarded as void or invalid.
"I am of the view that what needs to be addressed is the apprehension of the petitioners based on threat to their life and liberty for the reasons/circumstances as narrated in the petition", repeated Justice Monga.
Although inferring that the petitioners have not solemnized a valid marriage as per Sub Section (iii) of Section 5 of the Hindu Marriage Act and may be required to satisfy the validity of their marriage before an appropriate Forum in the event of same being put to challenge, the bench noted that the issue in hand, however, is not marriage of the petitioners, but the deprivation of fundamental right of seeking protection of life and liberty.
"I have no hesitation to hold that Constitutional Fundamental Right under Article 21 stands on a much higher pedestal", declared the bench.
"Being sacrosanct under the Constitutional Scheme", the Single Judge concluded that it "must be protected", regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties.
"It is the bounden duty of the State as per the Constitutional obligations casted upon it to protect the life and liberty of every citizen", the bench further iterated.
"Right to human life is to be treated on a much higher pedestal, regardless of a citizen being minor or a major. The mere fact that the petitioner No.2 is not of marriageable age in the present case would not deprive him of his fundamental right as envisaged in Constitution of India, being a citizen of India", asserted the bench.
Accordingly, the Deputy Superintendent of Police, Amritsar is directed to verify the contents of the petition particularly the threat perception of the petitioners and thereafter provide necessary protection qua their life and liberty, if deemed fit.
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