SHAISTA SHAFI MALIK Vs. UNION TERRITORY OF JAMMU AND KASHMIR
HIGH COURT OF JAMMU AND KASHMIR
Shaista Shafi Malik
Union Territory Of Jammu And Kashmir
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Tashi Rabstan,J. -
(1.)Petitioners claim that they, being major, have contracted marriage out of their freewill and are living as husband and wife, but are apprehensive to be subjected to physical violence and harassment at hands of their relatives, including respondents 5 to 9, as petitioners have contracted marriage against their wishes. Petitioners, therefore, seek protection and security cover from official respondents.
(2.)Heard and perused the file. Perusal of record annexed with writ petition reveals that petitioners are major and have contracted marriage according to Muslim Personal Law, rites and customs.
(3.)When two adults consensually choose each other as life partners, it is manifestation of their choice that is recognised under Articles 19 and 21 of the Constitution. Such right has sanction of constitutional law and once that is recognised, said right needs to be protected and it cannot succumb to conception of class honour or group thinking. Consent of family or community or clan is not necessary once two adult individuals agree to enter into wedlock and their consent has to be piously given primacy. the concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Thus, it is emphatically clear that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person. The choice of an individual is an extricable part of dignity, for dignity cannot be thought of where there is erosion of choice and no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.
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