Family Matters - Landmark Judgements by the SC

landmark judgments of supreme court of india on MARRIAGE & DIVORCE

the common law courts during the fifteenth century as an accompaniment of the writs of
certiorari and privilege to assert their jurisdiction against the local and franchise courts.”
25. In Ware v. Sanders6, a reference was made to the Law of Habeas Corpus by James A Scott and
Charles C. Roe of the Chicago Bar (T.H. Flood & Company, Publishers, Chicago, Illinois, 1923)
where the authors have dealt with the aspect of Habeas Corpus. It reads as under:

“ A writ of habeas corpus is a writ of right of very ancient origin, and the preservation of its
benefit is a matter of the highest importance to the people, and the regulations provided for its
employment against an alleged unlawful restraint are not to be construed or applied with over
technical nicety, and when ambiguous or doubtful, should be interpreted liberally to promote
the effectiveness of the proceeding.”

(See Ummu Sabeena v. State of Kerala and Others7)
26. In Ummu Sabeena, the Court further ruled that the principle of habeas corpus has been

incorporated in our constitutional law and in a democratic republic like India where judges
function under a written Constitution and which has a chapter of fundamental rights to protect
individual liberty, the judges owe a duty to safeguard the liberty not only of the citizens but also
of all persons within the territory of India; and the same exercise of power can be done in the
most effective manner by issuing a writ of habeas corpus.
27. Thus, the pivotal purpose of the said writ is to see that no one is deprived of his/her liberty
without sanction of law. It is the primary duty of the State to see that the said right is not sullied in
any manner whatsoever and its sanctity is not affected by any kind of subterfuge. The role of the
Court is to see that the detenue is produced before it, find out about his/her independent choice
and see to it that the person is released from illegal restraint. The issue will be a different one
when the detention is not illegal. What is seminal is to remember that the song of liberty is sung
with sincerity and the choice of an individual is appositely respected and conferred its esteemed
status as the Constitution guarantees. It is so as the expression of choice is a fundamental right
under Articles 19 and 21 of the Constitution, if the said choice does not transgress any valid legal
framework. Once that aspect is clear, the enquiry and determination have to come to an end.
28. In the instant case, the High Court, as is noticeable from the impugned verdict, has been
erroneously guided by some kind of social phenomenon that was frescoed before it. The writ
court has taken exception to the marriage of the respondent No. 9 herein with the appellant.
It felt perturbed. As we see, there was nothing to be taken exception to. Initially, Hadiya had
declined to go with her father and expressed her desire to stay with the respondent No.7 before
the High Court and in the first writ it had so directed. The adamantine attitude of the father,
possibly impelled by obsessive parental love, compelled him to knock at the doors of the High
Court in another Habeas Corpus petition whereupon the High Court directed the production of
Hadiya who appeared on the given date along with the appellant herein whom the High Court
calls a stranger. But Hadiya would insist that she had entered into marriage with him. True it is,
she had gone with the respondent No.7 before the High Court but that does not mean and can
never mean that she, as a major, could not enter into a marital relationship. But, the High Court
unwarrantably took exception to the same forgetting that parental love or concern cannot be

6 146 Iowa 233 : 124 NW 1081 (1910)
7 (2011) 10 SCC 781

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allowed to fluster the right of choice of an adult in choosing a man to whom she gets married.
And, that is where the error has crept in. The High Court should have, after an interaction as
regards her choice, directed that she was free to go where she wished to.
29. The High Court further erred by reflecting upon the social radicalization and certain other
aspects. In a writ of habeas corpus, especially in the instant case, it was absolutely unnecessary.
If there was any criminality in any sphere, it is for the law enforcing agency to do the needful but
as long as the detenue has not been booked under law to justify the detention which is under
challenge, the obligation of the Court is to exercise the celebrated writ that breathes life into our
constitutional guarantee of freedom. The approach of the High Court on the said score is wholly
fallacious.
30. The High Court has been swayed away by the strategy, as it thought, adopted by the respondent
No.7 before it in connivance with the present appellant and others to move Hadiya out of the
country. That is not within the ambit of the writ of Habeas Corpus. The future activity, if any, is
required to be governed and controlled by the State in accordance with law. The apprehension
was not within the arena of jurisdiction regard being had to the lis before it.
31. Another aspect which calls for invalidating the order of the High Court is the situation in which
it has invoked the parens patriae doctrine. Parens Patriae in Latin means “parent of the nation”.
In law, it refers to the power of the State to intervene against an abusive or negligent parent, legal
guardian or informal caretaker, and to act as the parent of any child or individual who is in need
of protection. “The parens patriae jurisdiction is sometimes spoken of as ‘supervisory’”8 .
32. The doctrine of Parens Patriae has its origin in the United Kingdom in the 13th century. It implies
that the King as the guardian of the nation is under obligation to look after the interest of those
who are unable to look after themselves. Lindley L.J. in Thomasset v. Thomasset9 pointed out that
in the exercise of the Parens Patriae jurisdiction, “the rights of fathers and legal guardians were
always respected, but controlled to an extent unknown at common law by considering the real
welfare.” The duty of the King in feudal times to act as Parens Patriae has been taken over in
modern times by the State.
33. Black’s Law Dictionary defines ‘Parens Patriae’ as:

“1. The State regarded as a sovereign; the state in its capacity as provider of protection to
those unable to care for themselves.

2. A doctrine by which a government has standing to prosecute a lawsuit on behalf of
a citizen, especially on behalf of someone who is under a legal disability to prosecute
the suit. The State ordinarily has no standing to sue on behalf of its citizens, unless a
separate, sovereign interest will be served by the suit.”

34. In Charan Lal Sahu v. Union of India10, the Constitution Bench, while delving upon the concept
of parens patriae, stated:

“35. …In the “Words and Phrases” Permanent Edition,Vol. 33 at page 99, it is stated
that parens patriae is the inherent power and authority of a legislature to provide
protection to the person and property of persons non sui juris, such as minor, insane,

8 P.W. Yong, C Croft and ML Smit, On Equity
9 1894] P 295
10 (1990) 1 SCC 613

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and incompetent persons, but the words parens patriae meaning thereby ‘the father
of the country’, were applied originally to the King and are used to designate the
State referring to its sovereign power of guardinaship over persons under disability.
(emphasis supplied)

Parens patriae jurisdiction, it has been explained, is the right of the sovereign and
imposes a duty on sovereign, in public interest, to protect persons under disability who
have no rightful protector. The connotation of the term parens patriae differs from
country to country, for instance, in England it is the King, in America it is the people,
etc. The Government is within its duty to protect and to control persons under disability.
Conceptually, the parens patriae theory is the obligation of the State to protect and takes
into custody the rights and the privileges of its citizens for dischargings its obligations.
Our Constitution makes it imperative for the State to secure to all its citizens the rights
guaranteed by the Constitution and where the citizens are not in a position to assert and
secure their rights, the State must come into picture and protect and fight for the rights
of the citizens. …”

35. In Anuj Garg and Others v. Hotel Association of India and others11, a twoJudge Bench, while
dealing with the constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting
employment of “any man under the age of 25 years” or “any woman” in any part of such premises
in which liquor or intoxicating drug is consumed by the public, opined thus in the context of the
parens patriae power of the State:

“29. One important justification to Section 30 of the Act is parens patriae power of State. It
is a considered fact that use of parens patriae power is not entirely beyond the pale of
judicial scrutiny. 30. Parens patriae power has only been able to gain definitive legalist
orientation as it shifted its underpinning from being merely moralist to a more objective
grounding i.e. utility. The subjectmatter of the parens patriae power can be adjudged on
two counts:

(i) in terms of its necessity, and

(ii) assessment of any tradeoff or adverse impact, if any.

This inquiry gives the doctrine an objective orientation and therefore prevents it from
falling foul of due process challenge. (See City of Cleburne v. Cleburne Living Center12)”

36. Analysing further, the Court ruled that the parens patriae power is subject to constitutional
challenge on the ground of right to privacy also. It took note of the fact that young men and
women know what would be the best offer for them in the service sector and in the age of
internet, they would know all pros and cons of a profession. The Court proceeded to state:

“31. … It is their life; subject to constitutional, statutory and social interdicts—a citizen of
India should be allowed to live her life on her own terms.”

37. Emphasizing on the right of selfdetermination, the Court held:

“34. The fundamental tension between autonomy and security is difficult to resolve. It is
also a tricky jurisprudential issue. Right to selfdetermination is an important offshoot

11 (2008) 3 SCC 1
12 473 US 432, 439-41: 105 S Ct 3249 : 87 L Ed 2d 313 (1985)

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of gender justice discourse. At the same time, security and protection to carry out such
choice or option specifically, and state of violencefree being generally is another tenet of
the same movement. In fact, the latter is apparently a more basic value in comparison
to right to options in the feminist matrix.”

38. In Aruna Ramachandra Shanbaug v. Union of India13, the Court, after dealing with the decision
in State of Kerala v. N.M. Thomas14 wherein it has been stated by Mathew, J. that

“the Court also is ‘State’ within the meaning of Article 12 (of the Constitution) ...”, opined:

“130. In our opinion, in the case of an incompetent person who is unable to take a decision
whether to withdraw life support or not, it is the Court alone, as parens patriae, which
ultimately must take this decision, though, no doubt, the views of the near relatives, next
friend and doctors must be given due weight.”

39. Constitutional Courts in this country exercise parens patriae jurisdiction in matters of child
custody treating the welfare of the child as the paramount concern. There are situations when
the Court can invoke the parens patriae principle and the same is required to be invoked only
in exceptional situations. We may like to give some examples. For example, where a person is
mentally ill and is produced before the court in a writ of habeas corpus, the court may invoke the
aforesaid doctrine. On certain other occasions, when a girl who is not a major has eloped with a
person and she is produced at the behest of habeas corpus filed by her parents and she expresses
fear of life in the custody of her parents, the court may exercise the jurisdiction to send her to an
appropriate home meant to give shelter to women where her interest can be best taken care of
till she becomes a major.

40. In Heller v. Doe15, Justice Kennedy, speaking for the U.S. Supreme Court, observed:

“The State has a legitimate interest under its Parens Patriae powers in providing care to its
citizens who are unable to care for themselves.”

41. The Supreme Court of Canada in E. (Mrs.) v. Eve16 observed thus with regard to the doctrine of
Parens Patriae:

“The Parens Patriae jurisdiction for the care of the mentally incompetent is vested in the
provincial superior courts. Its exercise is founded on necessity. The need to act for the protection
of those who cannot care for themselves. The jurisdiction is broad. Its scope cannot be defined.
It applies to many and varied situations, and a court can act not only if injury has occurred
but also if it is apprehended. The jurisdiction is carefully guarded and the courts will not
assume that it has been removed by legislation.

While the scope of the parens partiae jurisdiction is unlimited, the jurisdiction must nonetheless
be exercised in accordance with its underlying principle. The discretion given under this
jurisdiction is to be exercised for the benefit of the person in need of protection and not for
the benefit of others. It must at all times be exercised with great caution, a caution that must
increase with the seriousness of the matter. This is particularly so in cases where a court might

13 (2011) 4 SCC 454
14 (1976) 2 SCC 310
15 509 US 312 (1993)
16 [1986] 2 SCR 388

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be tempted to act because failure to act would risk imposing an obviously heavy burden on
another person.”

42. The High Court of Australia in Secretary, Department of Health and Community Service v. J.W.B.
and S.M.B.17, speaking through Mason C.J., Dawson, Toohey and Gaudron JJ., has made the
following observations with regard to the doctrine:

“71. No doubt the jurisdiction over infants is for the most part supervisory in the sense that
the courts are supervising the exercise of care and control of infants by parents and guardians.
However, to say this is not to assert that the jurisdiction is essentially supervisory or that the
courts are merely supervising or reviewing parental or guardian care and control. As already
explained, the Parens Patriae jurisdiction springs from the direct responsibility of the Crown
for those who cannot look after themselves; it includes infants as well as those of unsound
mind.”

43. Deane J. in the same case stated the following:

“4… Indeed, in a modern context, it is preferable to refer to the traditional Parens Patriae
jurisdiction as “the welfare jurisdiction” and to the “first and paramount consideration”
which underlies its exercise as “the welfare principle”.”

44. Recently, the Supreme Court of New South Wales, in the case of AC v. OC (a minor)18, has
observed:

“36. That jurisdiction, protective of those who are not able to take care of themselves,
embraces (via different historical routes) minors, the mentally ill and those who, though
not mentally ill, are unable to manage their own affairs: Re Eve [1986] 2 SCR 388 at
407417; Court of Australia in Secretary, Department of Health and Community Services
v. JWB and SMB (Marion’s Case (1992) 175 CLR 218 at 258; PB v. BB [2013] NSWSC
1223 at [7][ 8], [40][ 42], [57][ 58] and [64][ 65].

37. A key concept in the exercise of that jurisdiction is that it must be exercised, both in
what is done and what is left undone, for the benefit, and in the best interest, of the
person (such as a minor) in need of protection.”

45. Thus, the Constitutional Courts may also act as Parens Patriae so as to meet the ends of justice.
But the said exercise of power is not without limitation. The courts cannot in every and any case
invoke the Parens Patriae doctrine. The said doctrine has to be invoked only in exceptional cases
where the parties before it are either mentally incompetent or have not come of age and it is
proved to the satisfaction of the court that the said parties have either no parent/legal guardian
or have an abusive or negligent parent/legal guardian.

46. Mr. Shyam Divan, learned senior counsel for the first respondent, has submitted that the said
doctrine has been expanded by the England and Wales Court of Appeal in a case DL v. A Local
Authority and others19. The case was in the context of “elder abuse” wherein a man in his 50s
behaved aggressively towards his parents, physically and verbally, controlling access to visitors
and seeking to coerce his father into moving into a care home against his wishes. While it was
assumed that the elderly parents did have capacity within the meaning of the Mental Capacity

17 [1992] HCA 15 (MARION’S Case) : (1992) 175 CLR 218
18 [2014] NSWSC 53
19 [2012] 3 All ER 1064

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Act, 2005 in that neither was subject to “an impairment of, or a disturbance in the functioning of
the mind or brain”, it was found that the interference with the process of their decision making
arose from undue influence and duress inflicted by their son. The Court of Appeal referred to
the judgment in Re: SA (Vulnerable Adult with Capacity : Marriage)20 to find that the parens
patriae jurisdiction of the High Court existed in relation to “vulnerable if ‘capacitous’ adults”. The
cited decision of the England and Wales High Court (Family Division) affirmed the existence
of a “great safety net” of the inherent jurisdiction in relation to all vulnerable adults. The term
“great safety net” was coined by Lord Donaldson in the Court of Appeal judgment which was
later quoted with approval by the House of Lords in In Re F (Mental Patient: Sterilisation21. In
paragraph 79 of Re: SA (Vulnerable Adult with Capacity : Marriage), Justice Munby observes:

“The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably
believed to be, for some reason deprived of the capacity to make the relevant decision, or
disabled from making a free choice, or incapacitated or disabled from giving or expressing
a real and genuine consent. The cause may be, but is not for this purpose limited to, mental
disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental
incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is,
or is reasonably believed to be, incapacitated from making the relevant decision by reason
of such things as constraint, coercion, undue influence or other vitiating factors.”

47. In relation to Article 8 of the European Convention on Human Rights (ECHR), Justice Munby
observes in paragraph 66:

“In terms of the ECHR, the use of the inherent jurisdiction in this context is compatible with
Article 8 in just the same manner as the MCA 2005 is compatible. Any interference with the
right to respect for an individual’s private or family life is justified to protect his health and or
to protect his right to enjoy his Article 8 rights as he may choose without the undue influence
(or other adverse intervention) of a third party. Any orders made by the court in a particular
case must be only those which are necessary and proportionate to the facts of that case, again
in like manner to the approach under the MCA 2005.”

48. However, in paragraph 76, he qualifies the above principle with the following comment:

“It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to
be unorthodox, entitled to be obstinate, entitled to be irrational. Many are.”

49. The judgment of Re: SA (Vulnerable Adult with Capacity : Marriage) (supra) authored by Justice
Munby and cited in the above Court of Appeal case was in the context of the exercise of parens
patriae to protect an eighteen year old girl from the risk of an unsuitable arranged marriage on
the ground that although the girl did not lack capacity, yet she was undoubtedly a “vulnerable
adult”.

50. Interestingly, in another case, namely, A Local Authority v. HB, MB, ML and BL (By their Children’s
Guardian)22, the High Court’s inherent jurisdiction was invoked to protect children who were
allegedly going to be taken by their mother to Syria where they were at a risk of radicalization.

20 2005] EWHC 2942 (FAM)
21 [1990] 2 AC 1
22 [2017] EWHC 1437 (Fam)

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Although the High Court dismissed the applications on facts for want of evidence, yet it made
certain observations regarding extremism and radicalization.
51. Mr. Divan has drawn our attention to the authority in A Local Authority v. Y23 wherein the
High Court (Family Division) invoked its inherent jurisdiction to protect a young person, the
defendant Y, from radicalization.
52. Relying upon the aforesaid decisions, he emphasized on the concept that when the major is a
vulnerable adult, the High Court under Article 226 of the Constitution of India can exercise the
parens patriae doctrine which has been exercised in this case. The aforesaid judgments, in our
considered opinion, are not applicable to the facts of the present case. We say so without any
hesitation as we have interacted with the respondent No. 9 and there is nothing to suggest that
she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in
her submissions and unequivocal in the expression of her choice.
53. It is obligatory to state here that expression of choice in accord with law is acceptance of individual
identity. Curtailment of that expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a
person. The social values and morals have their space but they are not above the constitutionally
guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of
that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person
is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her
autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum
of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the
realization of a right is more important than the conferment of the right. Such actualization indeed
ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because
the individualistic faith and expression of choice are fundamental for the fructification of the right.
Thus, we would like to call it indispensable preliminary condition.
54. Nonacceptance of her choice would simply mean creating discomfort to the constitutional right
by a Constitutional Court which is meant to be the protector of fundamental rights. Such a
situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to
abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the
centripodal value of liberty should allow an individual to write his/her script. The individual
signature is the insignia of the concept.
55. In the case at hand, the father in his own stand and perception may feel that there has been
enormous transgression of his right to protect the interest of his daughter but his view point or
position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own
volition, married the appellant. Therefore, the High Court has completely erred by taking upon
itself the burden of annulling the marriage between the appellant and the respondent no.9 when
both stood embedded to their vow of matrimony.
56. Resultantly, we allow the appeal and set aside the impugned order. However, as stated in the order
dated 08.03.2018, the investigation by the NIA in respect of any matter of criminality may continue
in accordance with law. The investigation should not encroach upon their marital status.

23 [2017] EWHC 968 (Fam)
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Per Hon’ble Dr. Justice D Y Chandrachud :—
1 While re-affirming the conclusions set out in the operative order, I agree with the erudite

judgment of the learned Chief Justice. I have added my own thoughts on the judicial parchment
to express my anguish with the grievous miscarriage of justice which took place in the present
case and to formulate principles in the expectation that such an injustice shall not again be
visited either on Hadiya or any other citizen. The High Court of Kerala has committed an error
of jurisdiction. But what to my mind, is disconcerting, is the manner in which the liberty and
dignity of a citizen have been subjected to judicial affront. The months which Hadiya lost, placed
in the custody of her father and against her will cannot be brought back. The reason for this
concurring judgment is that it is the duty of this Court, in the exercise of its constitutional
functions to formulate principles in order to ensure that the valued rights of citizens are not
subjugated at the altar of a paternalistic social structure.
2 Asokan, the father of Akhila alias Hadiya moved a habeas corpus petition before the High Court
of Kerala. His apprehension was that his daughter was likely to be transported out of the country.
The Kerala High Court was informed during the course of the hearing that she had married
Shafin Jahan. The High Court allowed the petition for habeas corpus and directed that Hadiya
shall be escorted from a hostel in which she resided in Ernakulam to the house of her father
holding that:

“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This
Court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age.
The duty cast on this Court to ensure the safety of at least the girls who are brought before it
can be discharged only by ensuring that Ms. Akhila is in safe hands.”

3 With these directions, the Division Bench of the Kerala High Court declared that the marriage
between Hadiya and Shafin Jahan is null and void and ordered “a comprehensive investigation”
by the police. Hadiya continued to remain, against her will, in compulsive confinement at the
home of her father in pursuance of the directions of the Kerala High Court. On 27 November
2017, this Court interacted with Hadiya and noted that she desires to pursue and complete her
studies as a student of Homeopathy at a college where she was a student, in Salem. Accepting her
request, this Court directed the authorities of the State to permit her to travel to Salem in order
to enable her to pursue her studies.

4 The appeal filed by Shafin Jahan has been heard finally. Hadiya is a party to these proceedings.
5 This Bench of three judges pronounced the operative part of its order on 8 March 2018 and

allowed the appeal by setting aside the judgment of the High Court annulling the marriage
between Shafin Jahan and Hadiya. The Court has underscored that Hadiya is at liberty to pursue
her endeavours in accordance with her desires.
6 Hadiya is a major. Twenty four years old, she is pursuing a course of studies leading up to a
degree in Homoeopathic medicine and surgery at a college in Salem in Tamil Nadu. She was born
to parents from the Ezhava Community. In January 2016, Asokan instituted a habeas corpus
petition, stating that Hadiya was missing. During the course of the proceedings, Hadiya appeared
before the Kerala High Court and asserted that she had accepted Islam as a faith of choice. From
7 January 2016, she resided at the establishment of Sathyasarani Education Charitable Trust at
Malappuram. On 19 January 2016, the Kerala High Court categorically observed that Hadiya

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was not under illegal confinement after interacting with her and permitted her to reside at the
Sathyasarani Trust premises. Nearly seven months later, Asokan filed another petition in the
nature of habeas corpus alleging that Hadiya had been subjected to forced conversion and was
likely to be transported out of India.
7 During the course of the proceedings, the High Court interacted with Hadiya. She appeared
in the proceedings represented by an advocate. Hadiya, as the High Court records, declined to
accompany her parents and expressed a desire to continue to reside at Sathyasarani. The High
Court initially issued a direction that she should be “accommodated in a ladies’ hostel at the
expense of her father”. On 27 September 2016, Hadiya made a serious grievance of being in the
custody of the court for thirty five days without being able to interact with anyone. She stated
that she had no passport and the allegation that she was likely to go to Syria was incorrect.
Based on her request, the High Court directed her to reside at the Sathyasarani establishment.
The High Court heard the case on 24 October 2016, 14 November 2016 and 19 December 2016.
On 21 December 2016, the High Court was informed that Hadiya had entered into a marriage
on 19 December 2016. The High Court recorded its “absolute dissatisfaction at the manner in
which the marriage if at all one has been performed has been conducted”. Confronted with the
undisputed fact that Hadiya is a major, the High Court still observed:

“This Court exercising Parens Patriae jurisdiction has a duty to ensure that young girls like
the detenue are not exploited or transported out of the country. Though the learned Senior
Counsel has vociferously contended that the detenue is a person who has attained majority,
it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at
a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the
parents, until she is properly married. We consider it the duty of this Court to ensure that
a person under such a vulnerable state is not exposed to further danger, especially in the
circumstances noticed above where even her marriage is stated to have been performed with
another person, in accordance with Islamic religious rites. That too, with the connivance of the
7th respondent with whom she was permitted to reside, by this Court.”

Hadiya was under judicial order transported to a hostel at Ernakulam, with a direction that:
“she is not provided the facility of possessing or using a mobile phone.” Save and except for
her parents no one was allowed to meet her. An investigation was ordered into the “education,
family background, antecedents and other relevant details” of Shafin Jahan together with others
involved in the ‘conduct’ of the marriage. The High Court continued to monitor the case on
6 January 2017, 31 January 2017, 7 February 2017 and 22 February 2017. Eventually, by its
judgment and order dated 24 May 2017, the High Court allowed the petition for habeas corpus
and issued the directions noted above.

8 The principal findings which have been recorded by the High Court need to be visited and are
summarised below:
(i) This was “not a case of a girl falling in love with a boy of a different religion and wanting
to get married to him” but an “arranged marriage” where Hadiya had no previous
acquaintance with Shafin Jahan;
(ii) Hadiya met Shafin Jahan on an online portal called “Way to Nikah”;

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(iii) During the course of the proceedings, Hadiya had stated before the court that she desired
to complete her studies as a student of Homeopathy and “nobody had a case at that time
that she wanted to get married”;

(iv) Though on 19 December 2016, the High Court adjourned the hearing to 21 December
2016 to enable her to proceed to her college, the marriage took place on the same day;

(v) The marriage was “only a make-believe intended to take the detenue out of reach of the
hands of this court”;

(vi) The conduct of the parties in conducting the marriage without informing the court was
unacceptable;

(vii) There is no document evidencing the conversion of Hadiya to Islam; the antecedents of
Shafin Jahan and his Facebook posts show a radical inclination; and

(viii) No prudent parent would decide to get his daughter married to a person accused in a
criminal case. The High Court concluded that the marriage “is only a sham and is of no
consequence”, a charade to force the hands of the court.

9 During the course of the present proceedings, this Court by its order dated 30 October 2017
directed the First respondent to ensure the presence of his daughter on 27 November 2017.
On 27 November 2017, Hadiya stated before this Court, in the course of the hearing, that she
intends to pursue further studies towards the BHMS degree course at Salem, where she was
admitted. Directions were issued by the Court to ensure that Hadiya can pursue her course of
studies without obstruction. We clarified that while she could stay in the hostel of the college as
she desired, she would be “treated like any other student”.

10 Hadiya has filed an affidavit expressly affirming her conversion to Islam and her marriage to
Shafin Jahan.

11 There are two serious concerns which emerge from the judgment of the Kerala High Court.
The first is that the High Court transgressed the limits of its jurisdiction in issuing a declaration
annulling the marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas
corpus petition.

12 Undoubtedly, the powers of a constitutional court are wide, to enable it to reach out to injustice.
Mr Shyam Divan, learned senior counsel appearing on behalf of First respondent emphasised
the plenitude of the inherent powers of the High Court. The width of the domain which is
entrusted to the High Court as a constitutional court cannot be disputed. Halsbury’s Laws of
England postulates:

“In the ordinary way the Supreme Court, as a superior court of record, exercise the full plenitude
of judicial power in all matters concerning the general administration of justice within its
territorial limits, and enjoys unrestricted and unlimited powers in all matters of substantive
law, both civil and criminal, except insofar as that has been taken away inunequivocal terms
by statutory enactment. The term “inherent jurisdiction” is not used in contradistinction to
the jurisdiction of the court exercisable at common law or conferred on it by statute or rules of
court, for the court may exercise its inherent jurisdiction even in respect of matters which are
regulated by statute or rule of court. The jurisdiction of the court which is comprised within

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the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a court of
law.”

Dealing with the ambit of the powers under Article 226, Gajendragadkar, CJ in State of Orissa v
Ram Chandra Dev and Mohan Prasad Singh Deo24 observed thus:

“Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly
very wide. Appropriate writs can be issued by the High Court under the said Article even for
purposes other than the enforcement of the fundamental rights and in that sense, a party who
invokes the special jurisdiction of the High Court under Article 226 is not confined to case
of illegal invasion of this fundamental right alone. But though the jurisdiction of the High
Court under Article 226 is wide in that sense, the concluding words of that Article clearly
indicate that before a writ or an appropriate order can be issued in favour of a party, it must
be established that the party has a right and the said right is illegally invaded or threatened.
The existence of a right is thus the foundation of a petition under Article 226.”

While dealing with the powers and privileges of the state legislatures, in Keshav Singh25, a Bench
of seven learned judges held thus:

“136…in the case of a superior Court of Record, it is for the court to consider whether any
matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior
Court is entitled to determine for itself questions about its own jurisdiction. “Prima facie”,
says Halsbury, “no matter is deemed to be beyond the jurisdiction of a superior court unless it
is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless
it is expressly shown on the face of the proceedings that the particular matter is within the
cognizance of the particular court [Halsbury’s Law of England, Vol. 9, p. 349] ”.

The High Court is vested with an extra-ordinary jurisdiction in order to meet unprecedented
situations (T K Rangarajan v Government of T.N.26). Several decisions have noted the inherent
and plenary powers of the High Court. Their purpose is to advance substantial justice. (i) Roshan
Deen v Preeti Lal27; (ii) Dwarka Nath v ITO, Special Circle D-ward, Kanpur28; (iii) Naresh Shridhar
Nirajkar v State of Maharashtra29; and (iv) M V Elisabeth v Harwan Investment and Trading (P)
Ltd.30

13 These principles which emerge from the precedent are well-settled. Equally the exercise of all
powers by a constitutional court must ensure justice under and in accordance with law.

14 The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus
petition have been reiterated in several decisions of the Court. In Gian Devi v Superintendent,
Nari Niketan, Delhi31, a three-judge Bench observed that where an individual is over eighteen
years of age, no fetters could be placed on her choice on where to reside or about the person with
whom she could stay:

24 AIR (1964) SC 685
25 (1965) 1 SCR 413
26 (2003) 6 SCC 581
27 (2002) 1 SCC 100
28 (1965) 3 SCR 536
29 (1966) 3 SCR 744
30 1993 Suppl. (2) SCC 433
31 (1976) 3 SCC 234

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“…Whatever may be the date of birth of the petitioner, the fact remains that she is at present
more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice
of the person with whom she is to stay, nor can any restriction be imposed regarding the place
where she should stay. The court or the relatives of the petitioner can also not substitute their
opinion or preference for that of the petitioner in such a matter.”

The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once
the individual appears before the court and asserts that as a major, she or he is not under illegal
confinement, which the court finds to be a free expression of will, that would conclude the exercise
of the jurisdiction. In Girish v Radhamony K32 a two judge Bench of this Court observed thus:

“3…In a habeas corpus petition, all that is required is to find out and produce in court the
person who is stated to be missing. Once the person appeared and she stated that she had gone
of her own free will, the High Court had no further jurisdiction to pass the impugned order in
exercise of its writ jurisdiction under Article 226 of the Constitution.”

In Lata Singh v State of U P33, Bench of two judges took judicial notice of the harassment, threat
and violence meted out to young women and men who marry outside their caste or faith. The
court observed that our society is emerging through a crucial transformational period and the
court cannot remain silent upon such matters of grave concern. In the view of the court:

“17…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 is not harassed by anyone nor subjected to threats or
acts of violence, and anyone 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 againstsuch persons as provided by law.”

Reiterating these principles in Bhagwan Dass v State (NCT OF DELHI)34, this Court adverted to
the social evil of honour killings as being but a reflection of a feudal mindset which is a slur on
the nation.

In a more recent decision of a three judge Bench in Soni Gerry v Gerry Douglas35, this Court
dealt with a case where the daughter of the appellant and respondent, who was a major had
expressed a desire to reside in Kuwait, where she was pursuing her education, with her father.
This Court observed thus:

“9 …She has, without any hesitation, clearly stated that she intends to go back to Kuwait to
pursue her career. In such a situation, we are of the considered opinion that as a major,
she is entitled to exercise her choice and freedom and the Court cannot get into the

32 (2009) 16 SCC 360
33 (2006) 5 SCC 475
34 (2011) 6 SCC 396
35 (2018) 2 SCC 197

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aspect whether she has been forced by the father or not. There may be ample reasons on
her behalf to go back to her father in Kuwait, but we are not concerned with her reasons.
What she has stated before the Court, that alone matters and that is the heart of the
reasoning for this Court, which keeps all controversies at bay.

10. It needs no special emphasis to state that attaining the age of majority in an individual’s
life has its own significance. She/He is entitled to make her/his choice. The courts cannot,
as long as the choice remains, assume the role of parens patriae. The daughter is entitled
to enjoy her freedom as the law permits and the court should not assume the role of a
super guardian being moved by any kind of sentiment of the mother or the egotism of
the father. We say so without anyreservation.”

These principles emerge from a succession of judicial decisions. Fundamental to them is the
judgment of a Constitution bench of this Court in Kanu Sanyal v District Magistrate, Darjeeling36.

15 The High Court was seized of the grievance of Asokan that his daughter was under illegal
confinement and was likely to be transported out of the country. In the course of the hearing
of an earlier petition for habeas corpus, the High Court by its order dated 19 January 2016
expressly noticed that Hadiya was not willing to return to her parental home. Taking note of the
desire of Hadiya to reside at Sathyasarani, the High Court observed that “the alleged detenue
needs to be given liberty to take her own decision with respect to her future life.”

With the passing of that order the writ petition was withdrawn on 25 January 2016. Yet, again,
when a second petition was filed, it was evident before the High Court that Hadiya had no desire
to stay with her parents. She is a major. The Division Bench on this occasion paid scant regard
to the earlier outcome and to the decision of a coordinate Bench. The High Court inexplicably
sought to deviate from the course adopted in the earlier proceeding.

16 The schism between Hadiya and her father may be unfortunate. But it was no part of the
jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’
course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before
the High Court and stated that she was not under illegal confinement. There was no warrant
for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The
purpose of the habeas corpus petition ended. It had to be closed as the earlier Bench had done.
The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus
petition. The High Court did not take kindly to the conduct of Hadiya, noting that when it
had adjourned the proceedings to issue directions to enable her to pursue her studies, it was at
that stage that she appeared with Shafin Jahan only to inform the court of their marriage. How
Hadiya chooses to lead her life is entirely a matter of her choice. The High Court’s view of her
lack of candour with the court has no bearing on the legality of her marriage or her right to
decide for herself, whom she desires to live with or marry.

17 The exercise of the jurisdiction to declare the marriage null and void, while entertaining a petition
for habeas corpus, is plainly in excess of judicial power. The High Court has transgressed the
limits on its jurisdiction in a habeas corpus petition. In the process, there has been a serious
transgression of constitutional rights. That is the second facet to which we now turn.

36 (1973) 2 SCC 674
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Shafin Jahan Versus Asokan K.M. & Ors.

18 Hadiya and Shafin Jahan are adults. Under Muslim law, marriage or Nikah is a contract. Muslim
law recognises the right of adults to marry by their own free will. The conditions for a valid
Muslim marriage are:
(i) Both the individuals must profess Islam;
(ii) Both should be of the age of puberty;
(iii) There has to be an offer and acceptance and two witnesses must be present;
(iv) Dower and Mehar; and
(v) Absence of a prohibited degree of relationship.

19 A marriage can be dissolved at the behest of parties to it, by a competent court of law. Marital
status is conferred through legislation or, as the case may be, custom. Deprivation of marital
status is a matter of serious import and must be strictly in accordance with law. The High
Court in the exercise of its jurisdiction under Article 226 ought not to have embarked on the
course of annulling the marriage. The Constitution recognises the liberty and autonomy which
inheres in each individual. This includes the ability to take decisions on aspects which define
one’s personhood and identity. The choice of a partner whether within or outside marriage lies
within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of
privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in
the least affected by matters of faith. The Constitution guarantees to each individual the right
freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in
matters of marriage lie within an area where individual autonomy is supreme. The law prescribes
conditions for a valid marriage. It provides remedies when relationships run aground. Neither
the state nor the law can dictate a choice of partners or limit the free ability of every person to
decide on these matters. They form the essence of personal liberty under the Constitution. In
deciding whether Shafin Jahan is a fit person for Hadiya to marry, the High Court has entered
into prohibited terrain. Our choices are respected because they are ours. Social approval for
intimate personal decisions is not the basis for recognising them. Indeed, the Constitution
protects personal liberty from disapproving audiences.

20 Article 16 of the Universal Declaration of Human Rights underscores the fundamental
importance of marriage as an incident of human liberty:

“Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have
the right to marry and to found a family. They are entitled to equal rights as to marriage,
during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.”

21 The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The
Constitution guarantees the right to life. This right cannot be taken away except through a law
which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the
Constitution guaranteesas a fundamental right is the ability of each individual to take decisions
on matters central to the pursuit of happiness. Matters of belief and faith, including whether to
believe are at the core of constitutional liberty. The Constitution exists for believers as well as

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for agnostics. The Constitution protects the ability of each individual to pursue a way of life or
faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of
love and partnership are within the central aspects of identity. The law may regulate (subject to
constitutional compliance) the conditions of a valid marriage, as it may regulate the situations
in which a marital tie can be ended or annulled. These remedies are available to parties to a
marriage for it is they who decide best on whether they should accept each other into a marital
tie or continue in that relationship. Society has no role to play in determining our choice of
partners.

22 In Justice K S Puttaswamy v Union of India37, this Court in a decision of nine judges held that
the ability to make decisions on matters close to one’s life is an inviolable aspect of the human
personality:

“The autonomy of the individual is the ability to make decisions on vital matters of concern
to life… The intersection between one’s mental integrity and privacy entitles the individual
to freedom of thought, the freedom to believe in what is right, and the freedom of self-
determination… The family, marriage, procreation and sexual orientation are all integral to
the dignity of the individual.”

A Constitution Bench of this Court, in Common Cause (A Regd. Society) v Union of India38,
held:

“Our autonomy as persons is founded on the ability to decide: on what to wear and how to
dress, on what to eat and on the food that we share, on when to speak and what we speak,
on the right to believe or not to believe, on whom to love and whom to partner, and to freely
decide on innumerable matters of consequence and detail to our daily lives.”

The strength of the Constitution, therefore, lies in the guarantee which it affords that each
individual will have a protected entitlement in determining a choice of partner to share intimacies
within or outside marriage.

23 The High Court, in the present case, has treaded on an area which must be out of bounds for a
constitutional court. The views of the High Court have encroached into a private space reserved
for women and men in which neither law nor the judges can intrude. The High Court was of
the view that at twenty four, Hadiya “is weak and vulnerable, capable of being exploited in many
ways”. The High Court has lost sight of the fact that she is a major, capable of taking her own
decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she
pleases. The concern of this Court in intervening in this matter is as much about the miscarriage
of justice that has resulted in the High Court as much as about the paternalism which underlies
the approach to constitutional interpretation reflected in the judgment in appeal. The superior
courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are
incapable of asserting a free will such as minors or persons of unsound mind. The exercise of
that jurisdiction should not transgress into the area of determining the suitability of partners to
a marital tie. That decision rests exclusively with the individuals themselves. Neither the state
nor society can intrude into that domain. The strength of our Constitution lies in its acceptance
of the plurality and diversity of our culture. Intimacies of marriage, including the choices which
individuals make on whether or not to marry and on whom to marry, lie outside the control of

37 2017 (10) SCC 1
38 Writ Petition(Civil) No. 215 of 2005
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Shafin Jahan Versus Asokan K.M. & Ors.

the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The
cohesion and stability of our society depend on our syncretic culture. The Constitution protects
it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity
as a nation.
24 Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms.
Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the
free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them
from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent
the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom
and liberty. Fear silences freedom.
25 We have not been impressed with the submission of Mr Shyam Divan, learned senior counsel
that it was necessary for the High Court to nullify, what he describes as a fraud on the Court, as
an incident of dealing with conduct obstructing the administration of the justice. Whether or not
Hadiya chose to marry Shafin Jahan was irrelevant to the outcome of the habeas corpus petition.
Even if she were not to be married to him, all that she was required to clarify was whether she
was in illegal confinement. If she was not, and desired to pursue her own endeavours, that was
the end of the matter in a habeas corpus petition. The fact that she decided to get married during
the pendency of the proceedings had no bearing on the outcome of the habeas corpus petition.
Constitutionally it could have no bearing on the outcome.
26 During the course of the proceedings, this Court by its interim order had allowed the National
Investigation Agency to assist the Court. Subsequently, NIA was permitted to carry out an
investigation. We clarify that NIA may exercise its authority in accordance with the law within
the bounds of the authority conferred upon it by statute. However, the validity of the marriage
between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. Moreover,
nothing contained in the interim order of this Court will be construed as empowering the
investigating agency to interfere in the lives which the young couple seeks to lead as law abiding
citizens.
27 The appeal stands allowed in terms of our order dated 8 March 2018.
The judgment of the High Court is set aside.

qqq

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Sneha Parikh versus Manit Kumar

Supreme Court of India
Bench : Hon’ble Mr. Justice Dipak Misra, CJI, Hon’ble Mr. Justice A.M. Khanwilkar and Hon’ble

Dr. Justice D.Y. Chandrachud
Sneha Parikh ...Petitioner
Versus
Manit Kumar ...Respondent

Transfer Petition (Civil) No. 373/2017

Decided on : 16th January, 2018

In the present case, the Supreme Court directed the parties to appear before the Supreme
Court Mediation Centre. The parties arrived at a settlement. In the course of hearing, the
counsel for both the parties submitted that the parties have been living separately for more
than two years and there exists no situation for reconciliation, hence, the Court may grant
divorce and quash the FIR lodged by the petitioner-wife at Police Station Samta Nagar,
Mumbai, for the offences punishable under Section 498-A, 406 and 506 Part II read with
Section 34 of the Indian Penal Code, 1860.

As per the settlement, the amount of Rs. 18,00,000 (Eighteen Lakhs) was agreed as
permanent alimony out of which Rs. 6,00,000 (Six Lakhs) was already paid to the petitioner-
wife and the rest of the 12,00,000 (Twelve Lakhs) was paid to the wife on the date of hearing.

Therefore, the court invoking its power under Article 142 of the Constitution, with regard
to the facts of the case and fulfillment of the terms of the settlement, the Court dissolved
the marriage by mutual consent of the parties and also quashed the above-mentioned FIR
lodged by the petitioner-wife.

ORDER
This Court vide order dated 9.11.2017 had directed the parties to appear before the Supreme Court
Mediation Centre on 16.11.2017. Thereafter, they appeared and the mediation proceedings continued.
The learned Mediator has recorded the settlement, which has been arrived at between the parties. The
settlement agreement reads as follows:-
SETTLEMENT AGREEMENT This Settlement Agreement is entered into between petitioner-wife
Sneha Parikh, w/o Mr. Manit Kumar D/o Shri Mayur Parikh, R/o Flat No. 8-103, Swapna Puri, CHS,
Jivala Pada, Thakur Village, Kandivali (E), Mumbai-400101, Maharashtra and Mr. Manit Kumar S/o
Shri Mahinder Kumar Kathuria, R/o D/874, New Friends Colony, New Delhi-110025.
The marriage between the petitioner-wife and the respondent-husband was solemnized as per Hindu
rites and customs on 10.2.2015 at Delhi. Because of disputes temperamental differences both the
parties started residing separately since October, 2015.

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Sneha Parikh versus Manit Kumar

The petitioner-Sneha Parikh lodge the TP(C) 373/2017 complaint against the respondent and his
family members, where upon a case crime registration no. 386/2016 was registered at P.S. Samta Nagar,
Mumbai under Sections 498A, 406, 506(2), 34 IPC.
There is no issue out of this wedlock and the parties are living separately since October, 2015. The
respondent-husband has filed a petition H.M.A. No. 1002 of 2016 under Section 13 of the H.M.A.
The same is pending before the Principal Judge, Family Courts, Saket District Court, New Delhi
and thereafter the petitioner-wife has filed the present Transfer Petition for the transfer of the above
divorce petition filed by the respondent-husband.
The Hon’ble Supreme Court vide its order dated 9.11.2017 was pleased to refer the matter to the
Supreme Court Mediation centre.
Comprehensive mediation sessions were held with the parties separately and jointly in presence of
their respective counsels on today i.e. on 16.11.2017.
Both the parties hereto have arrived at an amicable mutual settlement on the following terms and
conditions for dissolution of marriage by mutual consent and for quashing of the Crime Registration
No. 386 of 2016 at P.S. Samta Nagar, Mumbai against the respondent and his other family members:
1. That is is agreed between the parties that they shall jointly pray for dissolution of marriage

and quashing of Crime Registration No. 386 of 2016 at P.S. Samta Nagar, Mumbai against the
respondent and his other family members as well as disposing of all the matter between the
parties before the Hon’ble Supreme Court at the time of next date of hearing invoking the
inherent power under Article 142 of the Constitution for grant of divorce by mutual consent
as both the parties are staying separately for the last more than 2 years and there is no hope for
reunion/reconciliation.
2. The respondent-husband has agreed to pay a total sum of Rs.18,00,000/- (Rupees Eighteen Lacs
Only) to the petitioner-wife towards full and final settlement of all her claims towards alimony,
maintenance (past, present and future), Stridhan, belongings and any other claim TP(C)
373/2017 whatsoever. That out of this an amount of Rs.6,00,000/- (Rupees Six Lakh Only) has
already been paid/deposited by the respondent in the Court of Hon’ble Session Judge Dhindoshi
District Court, Mumbai in Crime Registration No. 386 of 2016 while hearing on the anticipatory
bail application No. 1077 of 2016 titled as Manit Kumar & Ors. vs. State of Maharashtra and the
petitioner has already received/withdrawn the said amount of Rs.6,00,000/- (Rupees Six Lakh
Only). Hence, the respondent has to pay only the balance amount of Rs.12,00,000/- (Rupees
Twelve Lakh Only) to the petitioner. It is agreed that the said amount shall be paid in the
following manner:-
(a) That out of the aforesaid amount Rs.6,00,000/- (Rupees Six Lacs Only) will be paid by

demand draft/bankers cheque in the name of Sneha Mayur Parikh at the time of recording
the statement of the parties in the divorce petition under Section 13(B)(2) of H.M.A.
(b) That balance/final amount of Rs.6,00,000/- (Rupees six lacs only) will be paid by demand
draft/bankers cheque in the name of Sneha Mayur Parikh at the time of quashing of FIR/
Crime Registration No. 386 of 2016 at P.S. Samta Nagar, Mumbai against the respondent
and his other family members.
3. That it is agreed between the parties that the partnership firm with the name and style of M/s.
Visual Echoes in which both the petitioner and respondent (petitioner and respondent 10% share

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of petitioner and 90% share of respondent) are partners is non functional since approximately
last 2 years. However, the parties have agreed to sign a dissolution deed on or before next date of
hearing before this Hon’ble Court. In the event if any liability arises with regard to the aforesaid
partnership firm the respondent has agreed to be liable for the same and the petitioner will not
be accountable for any such liability.
4. That the parties have further agreed in case where the application, under Article 142 of
Constitution of India mentioned above is not accepted by this Hon’ble Court, the parties shall
file a joint petition for divorce within two weeks under Section 13(B)(i) and (B)(ii) for grant of
decree of divorce by mutual consent before the TP(C) 373/2017 competent Court at Saket, Delhi,
as the marriage of the parties was solemnized at Delhi. That the respondent and his other family
members will file the quashing petition before the Hon’ble High Court at Mumbai for quashing
of Crime Registration No. 386 of 2016 at P.S. Samta Nagar, Mumbai against the respondent and
his other family members within 4 weeks from the date of divorce. The petitioner has agreed to
cooperate in quashing of the aforesaid FIR/Crime Registration No. 386 of 2016.
5. That in case the Hon’ble Supreme Court is pleased to allow the application filed under Article 142
of Constitution of India and grant divorce and quash the FIR, then the respondent-husband shall
pay the entire balance amount of Rs.12,00,000/- (Rupees Twelve Lakh Only) to the petitioner-
wife before this Hon’ble Court during the course of hearing.
6. That in case there is any other case/complaint pending before any Court/Authority filed by any
of the parties involved in any of the case filed against each other or their family members apart
from cases detailed in the present agreement with regard to this matrimonial dispute, shall be
withdrawn by the respective parties within one month from the signing of this agreement.
7. That the petitioner and the respondent have agreed that none of them would initiate any other
legal action or complaint against each other or against the family members of each other with
regard to this matrimonial alliance.
8. Subject to the aforesaid terms, the parties have resolved all the dispute amicably in relation to
the marriage and have been left with no claims against each other and/or their respective family
members.
9. By signing this Agreement the parties hereto solemnly state and affirm that they have no further
claims or demands against each other and all the disputes and differences have been amicably
settled by the parties hereto through the process of mediation.
10. The parties undertake to abide by the terms and conditions set out in the above mentioned
Agreement, which have been arrived without any coercion, duress or collusion and undertake
not to TP(C) 373/2017 raise any dispute whatsoever henceforth.
11. The contents of this settlement-agreement have been explained to all the parties through their
respective counsels and the parties have understood the terms of the settlement agreement.
We have perused the settlement agreement. In the course of hearing, learned counsel for the
parties submitted that this Court may grant divorce and quash the First Information Report
(FIR) lodged by the petitioner-wife, forming the subject matter of Crime Registration/FIR No.
386 of 2016 registered at Police Station Samta Nagar, Mumbai, for offences punishable under
Section 498A, 406 and 506(2) read with Section 34 of the Indian Penal Code (IPC).

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Sneha Parikh versus Manit Kumar

We have also been apprised that the amount of Rs.12,00,000/- (Rupees twelve lacs only) has
been paid to the petitioner-wife today.

In view of the aforesaid, we think it appropriate to direct that the marriage between the parties
stands dissolved on consent. It is ordered accordingly.

As all other disputes have been put to rest, we think it appropriate to quash the Crime
Registration/FIR No. 386 of 2016 registered at Police Station Samta Nagar, Mumbai, for the
offences punishable under Section 498A, 406 and 506(2) read with Section 34 of the IPC. We
appreciate the efforts made by the learned Mediator to convince the parties and make them
arrive at the settlement. TP(C) 373/2017 The transfer petition is accordingly disposed of.

Pending interlocutory applications, if any, also stand disposed of.
qqq

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Shakti Vahini versus Union Of India

Supreme Court of India

Bench : Hon’ble Mr. Justice Dipak Misra, CJ, Hon’ble Mr. Justice A.M. Khanwilkar and
Hon’ble Dr. Justice D.Y. Chandrachud

Shakti Vahini ...Petitioner(s)
Versus

Union of India and others ...Respondent(s)

Writ Petition (Civil) No. 231 of 2010

Decided on : 27th March, 2018

In the present case, a writ petition was filed under Article 32 of the Constitution of India
seeking directions to the State Governments and the Central Government to take preventive
steps to combat honor crimes.

The Court held that the consent of family or community or clan is not necessary when two
consenting adults enter into wedlock. It is right engrafted under Articles 21, 19(1)(a) and
14 of the Constitution to marry a person of one’s own choice. Hence, honour killings and
like activities performed by Khap Panchayats are illegal and it is the duty of the courts and
other authorities to protect the young couples /families from such illegality.

Further, the court distinguished between Honour Crime and Honour Killing. Whereas
Honour Crime is genus, Honour killing is species. However, the court emphasized that
whatever be the nomenclature of the act, it cannot be allowed because it hits the liberty
of choice of an individual relating to love and marriage. Therefore, such acts are illegal.
Moreover Preventive, Remedial and Punitive Directions have been issued to the State
Governments until a law prohibiting honour killing is passed.

Judgment

Dipak Misra, CJI Assertion of choice is an insegregable facet of liberty and dignity. That is why the
French philosopher and thinker, Simone Weil, has said:-
Liberty, taking the word in its concrete sense consists in the ability to choose. When the ability to
choose is crushed in the name of class honour and the persons physical frame is treated with absolute
indignity, a chilling effect dominates over the brains and bones of the society at large. The question that
poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed
to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have
exercised their choice to get married against the wishes of their elders or contrary to the customary
practice of the clan. The answer has to be an emphatic No. It is because the sea of liberty and the
ingrained sense of dignity do not countenance such treatment inasmuch as the pattern of behaviour is
based on some extra-constitutional perception. Class honour, howsoever perceived, cannot smother
the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution.
And this right of enjoyment of liberty deserves to be continually and zealously guarded so that it can

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thrive with strength and flourish with resplendence. It is also necessary to state here that the old order
has to give way to the new. Feudal perception has to melt into oblivion paving the smooth path for
liberty. That is how the statement of Joseph J. Ellis becomes relevant.
He has propounded:-
We dont live in a world in which there exists a single definition of honour anymore, and its a fool that
hangs on to the traditional standards and hopes that the world will come around him.
2. Presently, to the factual score. The instant Writ Petition has been preferred under Article 32 of

the Constitution of India seeking directions to the respondents- State Governments and the
Central Government to take preventive steps to combat honour crimes, to submit a National
Plan of Action and State Plan of Action to curb crimes of the said nature and further to direct
the State Governments to constitute special cells in each district which can be approached by
the couples for their safety and well being. That apart, prayers have been made to issue a writ
of mandamus to the State Governments to launch prosecutions in each case of honour killing
and take appropriate measures so that such honour crimes and embedded evil in the mindset of
certain members of the society are dealt with iron hands.
3. The petitioner-organization was authorized for conducting Research Study on Honour Killings
in Haryana and Western Uttar Pradesh by order dated 22.12.2009 passed by the National
Commission for Women. It is averred that there has been a spate of such honour killings in
Haryana, Punjab and Western Uttar Pradesh and the said trend is on the increase and such
killings have sent a chilling sense of fear amongst young people who intend to get married but do
not enter into wedlock out of fear. The social pressure and the consequent inhuman treatment by
the core groups who arrogate to themselves the position of law makers and impose punishments
which are extremely cruel instill immense fear that compels the victims to commit suicide or to
suffer irreparably at the hands of these groups. The egoism in such groups getting support from
similarly driven forces results in their becoming law unto themselves. The violation of human
rights and destruction of fundamental rights take place in the name of class honour or group
right or perverse individual perception of honour. Such individual or individuals consider their
behaviour as justified leaning on the theory of socially sanctioned norms and the legitimacy of
their functioning in the guise of ethicality of the community which results in vigilantism. The
assembly or the collective defines honour from its own perception and describes the same in
such astute cleverness so that its actions, as it asserts, have the normative justification.
4. It is contended that the existence of a woman in such an atmosphere is entirely dependent on
the male view of the reputation of the family, the community and the milieu. Sometimes, it is
centered on inherited local ethos which is rationally not discernible. The action of a woman
or a man in choosing a life partner according to her or his own choice beyond the community
norms is regarded as dishonour which, in the ultimate eventuate, innocently invites death at the
cruel hands of the community prescription. The reputation of a woman is weighed according
to the manner in which she conducts herself, and the family to which the girl or the woman
belongs is put to pressure as a consequence of which the members of the family, on certain
occasions, become silent spectators to the treatment meted out or sometimes become active
participants forming a part of the group either due to determined behaviour or unwanted sense
of redemption of family pride.

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5. The concept of honour with which we are concerned has many facets. Sometimes, a young man
can become the victim of honour killing or receive violent treatment at the hands of the family
members of the girl when he has fallen in love or has entered into marriage. The collective
behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate,
even servile or self-sacrificing, persons moving in physical frame having no individual autonomy,
desire and identity. The concept of status is accentuated by the male members of the community
and a sense of masculine dominance becomes the sole governing factor of perceptive honour.

6. It is set forth in the petition that the actions which are found to be linked with honour based
crimes are- (i) loss of virginity outside marriage; (ii) pre-marital pregnancy; (iii) infidelity; (iv)
having unapproved relationships; (v) refusing an arranged marriage; (vi) asking for divorce;
(vii) demanding custody of children after divorce; (viii) leaving the family or marital home
without permission; (ix) causing scandal or gossip in the community, and (x) falling victim to
rape. Expanding the aforesaid aspect, it is stated that some of the facets relate to inappropriate
relationship by a woman some of which lead to refusal of arranged marriages. Certain instances
have been cited with regard to honour crimes and how the said crimes reflect the gruesome
phenomena of such incidents. Murder in day light and brutal treatment in full public gaze of the
members of the society reflect that the victims are treated as inanimate objects totally oblivious
of the law of the land and absolutely unconcerned with the feelings of the victims who face
such cruelty and eventually succumb to them. The expression of intention by the couples to get
married even if they are adults is sans sense to the members who constitute the assembly, for
according to them, it is the projected honour that rules supreme and the lives of others become
subservient to their desires and decisions. Instances that have been depicted in the Writ Petition
pertain to beating of people, shaving of heads and sometimes putting the victims on fire as if
they are flies to the wanton boys. Various news items have been referred to express anguish with
regard to the abominable and horrifying incidents that the human eyes cannot see and sensitive
minds can never countenance.

7. It is contended in the petition that the parallel law enforcement agency consists of leading men
of a group having the same lineage or caste which quite often meets to deal with the problems
that affect the group. They call themselves Panchayats which have the power to punish for the
crimes and direct for social boycott or killing by a mob. Sometimes these Panchayats have the
nomenclature of Khap Panchayats which have cultivated and nurtured the feeling amongst
themselves that their duty is sanctified and their action of punishing the hapless victims is
inviolable. The meetings of the collective and the discussions in the congregation reflect the
level of passion at the highest. It is set forth that the extra-constitutional bodies which engage
in feudalistic activities have no compunction to commit such crimes which are offences under
the Indian Penal Code. It is because their violent acts have not been taken cognizance of by the
police and their functioning is not seriously questioned by the administration. The constitutional
provisions are shown scant regard and human dignity is treated at the lowest melting point
by this collective. Article 21 which provides for protection of life and liberty and guards basic
human rights and equality of status has been unceremoniously shown the exit by the actions
of these Panchayats or the groups who, without the slightest pangs of conscience, subscribe to
honour killing. In this backdrop, prayers have been made as has been stated hereinbefore.

8. A counter affidavit has been filed on the behalf of the Union of India, Ministry of Home Affairs
and Ministry of Women and Child Development, respondent Nos. 1, 2 and 3 respectively. It

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has been contended that honour killings are treated as murder as defined under Section 300
of the IPC and punishable under Section 302 of the IPC. As the police and public order are
State subjects under the Constitution, it is primarily the responsibility of the States to deal with
honour killings. It is put forth that the Central Government is engaging various States and Union
Territories for considering a proposal to either amend the IPC or enact a separate legislation to
address the menace of honour killing and related issues.
9. Pursuant to the order of this Court dated 9th September, 2013, the Union of India has filed
another affidavit stating, inter alia, that in order to tackle the issue of ‘honour killings’, a Bill
titled The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill has been
recommended by the Law Commission of India vide the 242nd Law Commission Report. The
Union of India has further contended that since the matter of the 242nd Law Commission
Report falls under List III, i.e., Concurrent list of the Seventh Schedule to the Constitution of
India, consultation with the Governments of the States and Union Territories is a sine qua non
for taking a policy decision in this regard.
10. In a further affidavit dated 16th January, 2014, the Union of India has contended that as on the
said date, 15 States/UTs have sent their positive responses, while responses from other remaining
States/UTs were awaited. The Union of India filed an additional affidavit on 25th September,
2014 wherein vide paragraph 4 it is averred that six more States/UTs have sent positive responses
in favour of The Prohibition of Interference with the Freedom of Matrimonial Alliances Bill
and that reminders have been sent to the remaining States/UTs whose responses are awaited.
Further, it has been submitted that after receiving comments from the remaining States/UTs,
necessary action shall be taken by the Union of India in the matter. It is the stand of the Union
of India that a draft Bill in consultation with all stakeholders will be prepared for the avowed
purpose as soon as the comments are received. It has also been set forth that several advisories
have been issued to the State Governments from time to time regarding the steps needed to
prevent crimes against women including special steps to be taken to curb the menace of honour
killing.
11. An affidavit has been filed by the State of Punjab stating, inter alia, that it is not taking adversarial
position and it does not intend to be a silent spectator to any form of honour killing and for
the said reason, it has issued Memo NX5/151/10-5H4/2732-80 in the Department of Home
Affairs and Justice laying down and bringing into force the revised guidelines/policies in order
to remove any doubt and to clear any uncertainty and/or threat prevalent amongst the public at
large. The policy, as put forth, envisages dealing with protection to newly wedded couples who
apprehend danger to life and liberty for at least six weeks after marriage. It also asserted that the
State is determined to take pre-emptive, protective and corrective measures and whenever any
individual case comes to notice or is highlighted, appropriate action has been taken and shall
also be taken by the Government. That apart, the reply affidavit reflects that all the culprits of the
crime have been booked under the law and proceeded against.
12. The State of Haryana has filed an affidavit denying the allegations made against the State and
further stating that adequate protection has been given to couples by virtue of the order of the
High Court and District Courts and sometimes by the police directly coming to know of the
situation. It is contended that FIRs have been lodged against persons accused of the crime and
the cases are progressing as per law. The stand of the State of Haryana is that an action plan has
already been prepared and the Crime Against Women Cells are functioning at every district

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headquarter in the State and necessary publicity has already been given and the citizens are
aware of those cells.
13. The State of Jharkhand has filed its response stating, inter alia, the measures taken against
persons involved in such crimes. Apart from asseverating that honour killing is not common in
the State of Jharkhand, it is stated that it shall take appropriate steps to combat such crimes.
14. A counter affidavit has been filed on behalf of NCT of Delhi. The affidavit states that Delhi Police
does not maintain separate record for cases under the category of Honour Killing. However, it
has been mentioned that by the time the affidavit was filed, 11 cases were registered. It is urged
that such cases are handled by the District Police and there is a special cell functioning within
Delhi Police meant for serious crimes relating to internal security and such cases can be referred
to the said cell and there is no necessity for constitution of a special cell in each police district.
Emphasis has been laid that Delhi Police has sensitized the field officers in this regard so that
the issues can be handled with necessary sensitivity and sensibility. The Department of Women
and Child Development has also made arrangements for rehabilitation of female victims facing
threat of honour killing and efforts have been made to sensitize the society against commission
of such crimes. A circular dealing with the subject Action to be taken to prevent cases of Honour
Killing has been brought on record.
15. The State of Rajasthan, in its reply, had strongly deplored the exercise of unwarranted activities
under the garb of khap panchayats. The State of Rajasthan contends that it has issued circulars
to the police personnel to keep a check on the activities of the panchayats and further expressed
its willingness to abide by any guidelines that may be issued by this Court to ameliorate and curb
the evil of honour killing that subsists in our society.
16. The State of Uttar Pradesh has filed two counter affidavits wherein it is stated that it is the
primary duty of the States to protect the Fundamental Rights enshrined and guaranteed under
the Constitution of India. It is further contended that although there is no specific legislation
to regulate and prevent “honour killing”, yet effective measures under the present law are being
taken by the State to control the same. The said measures are in the nature of directions and
guidelines to the law enforcement agencies. Further, the State of Uttar Pradesh has brought on
record that there have been no reported cases of “honour killing” or “social ostracizing” in the
State for the period from 01.01.2010 till 31.12.2012. Yet, time and again, directions are being
given to the police stations to keep a close watch on the activities and functioning of the Khaps.
The State of Uttar Pradesh has acceded to comply with any directions which this Court may
issue.
17. The State of Bihar has, in its affidavit, acknowledged that honour killing is a heinous crime which
violates the fundamental rights of the citizens. Although the State of Bihar has taken the stance
that cases of honour killing in the State are almost nil, yet a list of five cases which may assume
the character of honour killing have been mentioned in the affidavit. The State has further
averred that several reformative steps have been taken for the upliftment and empowerment
of women and constant efforts are being made to sensitize people. It has been asserted that the
State of Bihar has initiated a scheme to provide National Saving Certificate amounting to Rs.
25,000/- as incentive to any woman performing inter-caste marriage in order to ensure their
economic stability.

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18. It has been contended by the State of Madhya Pradesh that the State Government and the police
are alive to the problem of honour killings and they have created a “Crime Against Women Cell”
at the State level headed by the Inspector General of Police to ensure safety of couples and active
prosecution in each case of honour killing. The M.P. Government, vide order no. F/21-261/10
dated 27.01.2011, has issued specific instructions to the District Magistrates/Superintendent of
Police for taking strict action in cases of honour killing.

19. It is the contention of the State of Himachal Pradesh that there are no Panchayats of the nature of
Khap Panchayats operating in the State of Himachal Pradesh and that there have been no cases
of honour killing reported in the past 10 years. The State avers that several measures are being
taken to combat the social evils prevailing in the society.

20. An application for intervention, on behalf of several Khap Panchayats, filed by Manushi
Sanghatan has been allowed. It has been averred by Manushi Sanghatan that, on being requested
by the media to voice their concern on the activities of Khap panchayats, the Sanghatan has
conducted a survey into the functioning of the Khap Panchayats, but they were unable to find any
evidence to hold the Khap Panchayats responsible for honour killings occurring in the country.
In this factual background, the Sanghatan contends that the proposed bill, The Prohibition of
Interference with the Freedom of Matrimonial Alliances Bill’, is a futile exercise in view of the
ample existing penal provisions and it is stated that the powers that the said bill aims to stipulate
may have the result of giving power to vested interests to harass well meant gatherings of local
communities. The intervenor has also challenged the findings of the report of the petitioner on
various grounds.

21. The petitioner has filed a rejoinder affidavit wherein it has been highlighted that this Court has
taken cognizance of the brutal killings that take place in the name of honour and it is urged
that although some States have formed an Action Plan in pursuance of the directions issued by
this Court, yet they have failed to effectively implement the same in letter and spirit. In view of
this fact, effective guidelines to the police and law enforcement agencies to curb the menace of
honour killing need to be formulated and implemented.

22. From the stand taken by the concerned States, it is perceivable that the authorities, while denying
the incidences being visible, do not dispute the sporadic happenstance of such occurrences and
speak in a singular voice by decrying such acts. It is also clear that some such Panchayats take
the positive stance demonstrating their collective effort as to how they cultivate in people the
idea of inter-caste marriage and community acceptance. The duty of this Court, in view of the
authorities in the field that deal with specific circumstances, is to view the scenario from the
prism of pragmatic ground reality as has been projected and to act within the constitutional
parameters to protect the liberty and life of citizens. Commitment to the constitutional values
requires this Court to be sensitive and act in such a matter and we shall do so within the
permissible boundaries and framework because as the guardian of the rights of the citizens, this
Court cannot choose the path of silence.

23. Before we engage ourselves in the process what we have stated hereinabove and refer to the
earlier decisions of this Court, we think it apt to refer to the 242nd Report submitted by the Law
Commission of India, namely, Prevention of Interference with the Freedom of Matrimonial
Alliances (in the name of Honour and Tradition): A Suggested Legal Framework. The relevant
extracts of the Report read as follows:-

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1.2 At the outset, it may be stated that the words honour killings and honour crimes are
being used loosely as convenient expressions to describe the incidents of violence and
harassment caused to the young couple intending to marry or having married against the
wishes of the community or family members. They are used more as catch phrases and not
as apt and accurate expressions.

1.3 The so-called honour killings or honour crimes are not peculiar to our country. It is an evil
which haunts many other societies also. The belief that the victim has brought dishonour
upon the family or the community is the root cause of such violent crimes. Such violent
crimes are directed especially against women. Men also become targets of attack by
members of family of a woman with whom they are perceived to have an inappropriate
relationship. Changing cultural and economic status of women and the women going
against their male dominated culture has been one of the causes of honour crimes. In some
western cultures, honour killings often arise from women seeking greater independence
and choosing their own way of life. In some cultures, honour killings are considered less
serious than other murders because they arise from long standing cultural traditions and
are thus deemed appropriate or justifiable. An adulterous behaviour of woman or pre-
marital relationship or assertion of right to marry according to their choice, are widely
known causes for honour killings in most of the countries. The report of the Special
Rapporteur to U.N. 1 of the year 2002 concerning cultural practices in the family that
are violent towards women indicated that honour killings had been reported in Jordon,
Lebanon, Morocco, Pakistan, United Arab Republic, Turkey, Yemen and other Persian
Gulf countries and that they had also taken place in western countries such as France,
Germany and U.K. mostly within migrant communities. The report Working towards the
elimination of crimes against women committed in the name of honour 2 submitted to
the United Nations High Commissioner for Human Rights is quite revealing. Apart from
the other countries named above, according to the UN Commission on Human Rights,
there are honour killings in the nations of Bangladesh, Brazil, Ecuador, India, Israel, Italy,
Morocco, Sweden, Turkey and Uganda. According to Mr. Widney Brown, Advocacy
Director for Human Rights Watch, the practice of honour killing goes across cultures
and across religions. There are reports that in some communities, many are prepared to
condone the killing of someone who have dishonoured their family. The 2009 European
Parliamentary Assembly noted the rising incidents of honour crimes with concern. In
2010, Britain saw a 47% rise of honour-related crimes. Data from police agencies in the
UK report 2283 cases in 2010 and most of the attacks were conducted in cities that had
high immigrant populations. The national legal Courts in some countries viz., Haiti,
Jordon, Syria, Morocco and two Latin American countries do not penalize men killing
female relatives found committing adultery or the husbands wives in flagrante delicto. A
survey by Elen R. Sheelay 3 revealed that 20% of Jordanites interviewed simply believe that
Islam condones or even supports killing in the name of family honour which is a myth.

1.4 As far as India is concerned, honour killings are mostly reported from the States of
Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is also one of the known places
for honour killings. Even some incidents are reported from Delhi and Tamil Nadu.
Marriages with members of other castes or the couple leaving the parental home to live
together and marry provoke the harmful acts against the couple and immediate family

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members. 1.5 The Commission tried to ascertain the number of such incidents, the
accused involved, the specific reasons, etc., so as to have an idea of the general crime
scenario in such cases. The Government authorities of the States where incidents often
occur have been addressed to furnish the information. The Director (SR) in the Ministry
of Home Affairs, by her letter dated 26 May 2010, also requested the State Governments
concerned to furnish the necessary information to the Commission. However, there has
been no response despite reminder. But, from the newspaper reports, and reports from
various other sources, it is clear that the honour crimes occur in those States as a result of
people marrying without their familys acceptance and for marrying outside their caste or
religion. Marriages between the couple belonging to same Gotra (family name) have also
often led to violent reaction from the family members or the community members. The
Caste councils or Panchayats popularly known as Khap Panchayats try to adopt the chosen
course of moral vigilantism and enforce their diktats by Quoted in Anver Emons Article
on Honour Killings assuming to themselves the role of social or community guardians.
[underlining is ours]
24. Adverting to the dimensions of the problem and the need for a separate law, the Report states:-
2.3 The pernicious practice of Khap Panchayats and the like taking law into their own hands
and pronouncing on the invalidity and impropriety of Sagotra and inter-caste marriages
and handing over punishment to the couple and pressurizing the family members to
execute their verdict by any means amounts to flagrant violation of rule of law and invasion
of personal liberty of the persons affected.
2.4 Sagotra marriages are not prohibited by law, whatever may be the view in olden times.
The Hindu Marriage Disabilities Removal Act, 1946 was enacted with a view to dispel any
doubts in this regard. The Act expressly declared the validity of marriages between the
Hindus belonging to the same gotra or pravara or different sub-divisions of same caste.
The Hindu Marriage Act does not prohibit sagotra or inter- caste marriages. And further:-
2.5 The views of village elders or family elders cannot be forced on the willing couple and no
one has a right to use force or impose far-reaching sanctions in the name of vindicating
community honour or family honour. There are reports that drastic action including
wrongful confinement, persistent harassment, mental torture, infliction of or threats of
severe bodily harm is resorted to either by close relations or some third parties against the
so-called erring couple either on the exhortations of some or all the Panchayatdars or with
their connivance. Several instances of murder of one or the other couple have been in the
news. Social boycotts and other illegal sanctions affecting the young couple, the families
and even a section of local inhabitants are quite often resorted to. All this is done in the
name of tradition and honour. The cumulative effect of all such acts have public order
dimensions also.
25. The Law Commission had prepared a draft Bill and while adverting to the underlying idea of the
provisions of the draft Bill, it has stated:-
2.8 The idea underlying the provisions in the draft Bill is that there must be a threshold bar
against congregation or assembly for the purpose of objecting to and condemning the
conduct of young persons of marriageable age marrying according to their choice, the
ground of objection being that they belong to the same gotra or to different castes or

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communities. The Panchayatdars or caste elders have no right to interfere with the life
and liberty of such young couples whose marriages are permitted by law and they cannot
create a situation whereby such couples are placed in a hostile environment in the village/
locality concerned and exposed to the risk of safety. Such highhanded acts have a tendency
to create social tensions and disharmony too. No frame of mind or belief based on social
hierarchy can claim immunity from social control and regulation, in so far as such beliefs
manifest themselves as agents of enforcement of right and wrong. The very assembly
for an unlawful purpose viz. disapproving the marriage which is otherwise within the
bounds of law and taking consequential action should be treated as an offence as it has the
potential to endanger the lives and liberties of individuals concerned. The object of such
an assembly is grounded on disregard for the life and liberty of others and such conduct
shall be adequately tackled by penal law. This is without prejudice to the prosecution to be
launched under the general penal law for the commission of offences including abetment
and conspiracy. 2.9 Given the social milieu and powerful background of caste combines
which bring to bear intense pressure on parents and relatives to go to any extent to punish
the sinning couples so as to restore the community honour, it has become necessary to
deal with this fundamental problem. Any attempt to effectively tackle this socio-cultural
phenomenon, rooted in superstition and authoritarianism, must therefore address itself
to various factors and dimensions, viz, the nature and magnitude of the problem, the
adequacy of existing law, and the wisdom in using penal and other measures of sanction to
curb the power and conduct of caste combines. The law as it stands does not act either as a
deterrence or as a sobering influence on the caste combinations and assemblies who regard
themselves as being outside the pale of law. The socio-cultural outlook of the members of
caste councils or Panchayats is such that they have minimal or scant regard for individual
liberty and autonomy. [Emphasis added]
26. Highlighting the aspect of autonomy of choices and liberty, the underlying object of the proposed
Bill as has been stated by the Law Commission reads as under :-
4.1 The autonomy of every person in matters concerning oneself a free and willing creator of
ones own choices and decisions, is now central to all thinking on community order and
organization. Needless to emphasize that such autonomy with its manifold dimensions
is a constitutionally protected value and is central to an open society and civilized order.
Duly secured individual autonomy, exercised on informed understanding of the values
integral to ones well being is deeply connected to a free social order. Coercion against
individual autonomy will then become least necessary.
4.2 In moments and periods of social transition, the tensions between individual freedom
and past social practices become focal points of the communitys ability to contemplate
and provide for least hurting or painful solutions. The wisdom or wrongness of certain
community perspectives and practices, their intrinsic impact on liberty, autonomy and
self-worth, as well as the parents concern over impulsive and unreflective choices all these
factors come to the fore-front of consideration.
4.3 The problem, however, is the menacing phenomena of repressive social practices in the
name of honor triggering violent reaction from the influential members of community
who are blind to individual autonomy.

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27. Thus, the Report shows the devastating effect of the crime and the destructive impact on the
right of choice of an individual and the control of the collective over the said freedom. The
Commission has emphasized on the intense pressure of the powerful community and how they
punish the sinning couples according to their socio-cultural perception and community honour
and the action taken by them that results in extinction of the rights of individuals which are
guaranteed under the Constitution. It has eloquently canvassed about the autonomy of every
person in matters concerning oneself and the expression of the right which is integral to the said
individual.

28. Be it noted, the draft Bill refers to “Khap Panchayat” to mean any person or group of persons who
have gathered, assembled or congregated at any time with the view or intention of condemning
any marriage, including a proposed marriage, not prohibited by law, on the basis that such
marriage has dishonoured the caste or community tradition or brought disrepute to all or any of
the persons forming part of the assembly or the family or the people of the locality concerned.

29. Presently, we shall advert to certain pronouncements of this Court where the Court, while
adjudicating the lis of the said nature, has expressed its concern with regard to such social evil
which is the manifestation of perverse thought, egotism at its worst and inhuman brutality.

30. In Lata Singh v. State of U.P. and another 4, a two- Judge Bench, while dealing with a writ
petition under Article 32 of the Constitution which was filed for issuing a writ of certiorari and/
or mandamus for quashing of a trial, (2006) 5 SCC 475 allowed the writ petition preferred by the
petitioner whose life along with her husbands life was in constant danger as her brothers were
threatening them. The Court observed that there is no bar for inter-caste marriage under the
Hindu Marriage Act or any other law and, hence, no offence was committed by the petitioner,
her husband or husbands relatives. The Court also expressed dismay that instead of taking
action against the petitioners brothers for unlawful and high handed acts, the police proceeded
against the petitioners husband and her sisters-in-law. Being aware of the harassment faced and
violence against women who marry outside their caste, the Court observed:-
17. 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.

31. After so stating, the two-Judge Bench directed the administration/police authorities throughout
the country to ensure 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 is neither harassed by
anyone nor subjected to threats or acts of violence, and that anyone 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. Deliberating further, the Court painfully stated:-
18. We sometimes hear of honour killings of such persons who undergo inter-caste or inter-
religious marriage of their own free will. There is nothing honourable in such killings, and
in fact they are nothing but barbaric and shameful acts of murder committed by brutal,

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feudal-minded persons who deserve harsh punishment. Only in this way can we stamp
out such acts of barbarism.
32. In Arumugam Servai v. State of Tamil Nadu5, the Court referred to the observations made in
Lata Singhs case and opined:-
12. We have in recent years heard of Khap Panchayats (known as Katta Panchayats in
Tamil Nadu) which often decree or encourage honour killings or other atrocities in an
institutionalised way on boys and girls of different castes and religion, who wish to get
married or have been married, or interfere with (2011) 6 SCC 405 the personal lives of
people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped
out. As already stated in Lata Singh case, there is nothing honourable in honour killing or
other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities
in respect of personal lives of people committed by brutal, feudal-minded persons deserve
harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal
mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo
courts, which are wholly illegal.
33. After so stating, the Court directed the administrative and police officials to take strong measures
to prevent such atrocious acts. If such incidents happen, apart from instituting criminal
proceedings against those responsible for the atrocities, the State Government was directed to
immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as
other officials concerned and charge-sheet them and proceed against them departmentally if
they do not
(1) prevent the incident if it has not already occurred but they have knowledge of it in advance,
or
(2) if it has occurred, they do not promptly apprehend the culprits and others involved
and institute criminal proceedings against them. Be it noted, in the said case, the Court
commented on the appellants that they had behaved like uncivilized savages and deserved
no mercy.
34. The aforesaid view of the Court was further emphasized in Bhagwan Dass v. State (NCT of Delhi)
6 wherein it has been stated that many people feel that they are dishonoured by the behaviour
of the young man/woman who is related to them or belongs to their caste simply because he/
she is marrying against their wish or having an affair with someone, and hence they take the law
into their own hands and kill or physically assault such person or commit some other atrocities
which is wholly illegal. Regard being had to the expression of unhappiness with the behaviour
of a daughter or other person, the Court observed that the maximum a person can do is to cut
off social relations with her/him, but he cannot take the law into his own hands by committing
violence or giving threats of violence.
35. In Re: India Woman says Gang-raped on Orders of Village Court published in Business &
Financial News dated 23-1-20147, the Court, after referring to Lata Singh (2011) 6 SCC 396
(2014) 4 SCC 786 (supra), Arumugam Servai (supra) and adverting to the 242nd Report of the
Law Commission, opined:-
16. Ultimately, the question which ought to consider and assess by this Court is whether the
State police machinery could have possibly prevented the said occurrence. The response

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is certainly a yes. The State is duty-bound to protect the fundamental rights of its citizens;
and an inherent aspect of Article 21 of the Constitution would be the freedom of choice
in marriage. Such offences are resultant of the States incapacity or inability to protect the
fundamental rights of its citizens. And again:-
18. As a long-term measure to curb such crimes, a larger societal change is required via
education and awareness. The Government will have to formulate and implement policies
in order to uplift the socio-economic condition of women, sensitisation of the police and
other parties concerned towards the need for gender equality and it must be done with
focus in areas where statistically there is higher percentage of crimes against women.
36. In Vikas Yadav v. State of Uttar Pradesh and others 8 , the two-Judge Bench, while dwelling upon
the quantum of sentence in the case where the young man chosen by the sister was murdered
by the brother who had received education in good educational institutions, observed that the
accused persons had not cultivated the (2016) 9 SCC 541 ability to abandon the deprecable
feelings and attitude for centuries. Perhaps, they had harboured the fancy that it is an idea of
which time had arrived from time immemorial and ought to stay till eternity. Proceeding further,
the Court held:-
75. One may feel My honour is my life but that does not mean sustaining ones honour at the
cost of another. Freedom, independence, constitutional identity, individual choice and
thought of a woman, be a wife or sister or daughter or mother, cannot be allowed to be
curtailed definitely not by application of physical force or threat or mental cruelty in the
name of his self-assumed honour. That apart, neither the family members nor the members
of the collective has any right to assault the boy chosen by the girl. Her individual choice
is her self-respect and creating dent in it is destroying her honour. And to impose so-
called brotherly or fatherly honour or class honour by eliminating her choice is a crime
of extreme brutality, more so, when it is done under a guise. It is a vice, condemnable and
deplorable perception of honour, comparable to medieval obsessive assertions.
37. In Asha Ranjan v. State of Bihar and others9, the Court, in a different context, noted:-
61. choice of woman in choosing her partner in life is a legitimate constitutional right. It is
founded on individual choice that is recognised in the Constitution under Article 19, and
such a right is not expected to succumb to the concept of class honour or group thinking.
It is (2017) 4 SCC 397 because the sense of class honour has no legitimacy even if it is
practised by the collective under some kind of a notion.
38. In State of U.P. v. Krishna Master and others10, the Court, while setting aside the judgment of
acquittal of the High Court, convicted the accused persons with rigorous imprisonment for
life and fine of Rs. 25,000/-. It observed that killing of six persons and wiping out of almost
the whole family on the flimsy ground of saving of honour of the family would fall within the
rarest of rare case evolved by this Court and, therefore, the trial court was perfectly justified in
imposing capital punishment on the respondents. However, taking into consideration the fact
that the incident had taken place before twenty years, it did not pass the death sentence but
imposed the sentence of rigorous imprisonment for life. The said decision reflects the gravity of
the crime that occurs due to honour killing.

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39. The aforesaid authorities show the distress with which the Court has perceived the honour crimes
and also reflects the uneasiness and anxiety to curb such social symptoms. The observations
were made and the directions were issued in cases where a crime based on honour was required
to be AIR 2010 SC 3071 dealt with. But, the present case, in contradistinction, centres around
honour killing and its brutality and the substantive measures to be taken to destroy the said
menace. The violation of the constitutional rights is the fulcrum of the issue. The protection of
rights is pivotal. Though there has been constant social advancement, yet the problem of honour
killing persists in the same way as history had seen in 1750 BC under the Code of Hammurabi.
The people involved in such crimes become totally oblivious of the fact that they cannot tread
an illegal path, break the law and offer justification with some kind of moral philosophy of
their own. They forget that the law of the land requires that the same should be shown implicit
obedience and profound obeisance. The human rights of a daughter, brother, sister or son are
not mortgaged to the so-called or so-understood honour of the family or clan or the collective.
The act of honour killing puts the rule of law in a catastrophic crisis.

40. It is necessary to mention here that honour killing is not the singular type of offence associated
with the action taken and verdict pronounced by the Khap Panchayats. It is a grave one but not
the lone one. It is a part of honour crime. It has to be clearly understood that honour crime is
the genus and honour killing is the species, although a dangerous facet of it. However, it can be
stated without any fear of contradiction that any kind of torture or torment or ill-treatment in
the name of honour that tantamounts to atrophy of choice of an individual relating to love and
marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed
a moment of existence.

41. What we have stated hereinabove, to explicate, is that the consent of the family or the community
or the clan is not necessary once the two adult individuals agree to enter into a wedlock. Their
consent has to be piously given primacy. If there is offence committed by one because of some
penal law, that has to be decided as per law which is called determination of criminality. It
does not recognize any space for informal institutions for delivery of justice. It is so since a
polity governed by Rule of Law only accepts determination of rights and violation thereof by
the formal institutions set up for dealing with such situations. It has to be constantly borne in
mind that rule of law as a concept is meant to have order in a society. It respects human rights.
Therefore, the Khap Panchayat or any Panchayat of any nomenclature cannot create a dent in
exercise of the said right.

42. In this regard, we may fruitfully reproduce a passage from Kartar Singh v. State of Punjab 11
wherein C.G. Weeramantry in The Law in Crisis Bridges of Understanding emphasizing the
importance of rule of law in achieving social interest has stated:-

The protections the citizens enjoy under the Rule of Law are the quintessence of twenty centuries
of human struggle. It is not commonly realised how easily these may be lost. There is no known
method of retaining them but eternal vigilance.

There is no known authority to which this duty can be delegated but the community itself.
There is no known means of stimulating this vigilance but education of the community towards
an enlightened interest in its legal system, its achievements and its problems. Honour killing
guillotines individual liberty, freedom of choice and ones own perception of choice. It has
to be sublimely borne in mind that when two adults consensually choose each other as life

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partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the
Constitution. Such a right has the sanction of the constitutional law and once that is recognized,
the said right (1994) 3 SCC 569 needs to be protected and it cannot succumb to the conception
of class honour or group thinking which is conceived of on some notion that remotely does not
have any legitimacy.
43. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity,
protection and the 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. Without sustenance of
liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to
the living dead having to endure cruelty and torture without protest and tolerate imposition of
thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature
of dignified existence is to assert for dignity that has the spark of divinity and the realization
of choice within the parameters of law without any kind of subjugation. The purpose of laying
stress on the concepts of individual dignity and choice within the framework of liberty is of
paramount importance. We may clearly and emphatically state 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.
44. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of
where there is erosion of choice. True it is, the same is bound by the principle of constitutional
limitation but in the absence of such limitation, none, we mean, 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. The
majority in the name of class or elevated honour of clan cannot call for their presence or force
their appearance as if they are the monarchs of some indescribable era who have the power,
authority and final say to impose any sentence and determine the execution of the same in the
way they desire possibly harbouring the notion that they are a law unto themselves or they are
the ancestors of Caesar or, for that matter, Louis the XIV. The Constitution and the laws of this
country do not countenance such an act and, in fact, the whole activity is illegal and punishable
as offence under the criminal law.
45. It has been argued on behalf of the “Khap Panchayats” that it is a misnomer to call them by
such a name. The nomenclature is absolutely irrelevant. What is really significant is that the
assembly of certain core groups meet, summon and forcefully ensure the presence of the couple
and the family members and then adjudicate and impose punishment. Their further submission
is that these panchayats are committed to the spreading of awareness of permissibility of inter-
community and inter-caste marriages and they also tell the people at large how “Sapinda”
and “Sagotra marriages have no sanction of law. The propositions have been structured with
immense craft and advanced with enormous zeal and enthusiasm but the fallacy behind the said
proponements is easily decipherable. The argument is founded on the premise that there are
certain statutory provisions and certain judgments of this Court which prescribe the prohibitory
degrees for marriages and provide certain guidelines for maintaining the sex ratio and not

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giving any allowance for female foeticide that is a resultant effect of sex determination which is
prohibited under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex
Selection) Act, 1994 (for short PCPNDT Act) (See : Voluntary Health Association of Punjab v.
Union of India and others12 and Voluntary Health Association of Punjab v. Union of India and
others13).
46. The first argument deserves to be rejected without much discussion. Suffice it to say, the same
relates to the recognition of matrimonial status. If it is prohibited in law, law shall take note of
it when the courts are approached. Similarly, PCPNDT Act is a complete code. That apart, the
concern of this Court in spreading awareness to sustain sex ratio is not to go for sex determination
and resultantly female foeticide. It has nothing to do with the institution of marriage.
47. The ‘Khap Panchayats’ or such assembly should not take the law into their hands and further
cannot assume the character of the law implementing agency, for that authority has not been
conferred upon them under any law. Law has to be allowed to sustain by the law enforcement
agencies. For example, when a crime under IPC is committed, an assembly of people cannot
impose the punishment. They have no authority. They are entitled to lodge an FIR or inform
the police. They may also facilitate so that the accused is dealt with in accordance with law. But,
by putting forth a stand that they are spreading awareness, they really can neither affect others’
fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has
to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be
stopped in entirety. There is no other alternative. What is illegal cannot commend recognition
or acceptance.
48. Having noted the viciousness of honour crimes and considering the catastrophic effect of
such kind of crimes on the society, it is desirable to issue directives to be followed by the law
enforcement agencies and also to the various administrative authorities. We are disposed to
think so as it is the obligation of the State to have an atmosphere where the citizens are in a
position to enjoy their fundamental rights. In this context, a passage from S. Rangarajan v. P.
Jagjivan Ram and others14 is worth reproducing:-
51. We are amused yet troubled by the stand taken by the State Government with regard to the

film which has received the National Award. We want to put the anguished question, what
good is the protection of freedom of expression if the State does not take care to protect
it? If the film, is unobjectionable and cannot constitutionally be restricted under Article
19(2), freedom of expression cannot be suppressed on account of threat of demonstration
and processions or threats of violence. That would tantamount to negation of the rule of
law and a surrender to blackmail and intimidation. It is the duty of the State to protect the
freedom of expression since it is a liberty guaranteed against the State. The State cannot
plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent
it and protect the freedom of expression.
We are absolutely conscious that the aforesaid passage has been stated in respect of a
different fundamental right but the said principle applies with more vigour when the life
and liberty of individuals is involved. We say so reminding the States of their constitutional
obligation to comfort and (1989) 2 SCC 574 nurture the sustenance of fundamental rights
of the citizens and not to allow any hostile group to create any kind of trench in them.

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49. We may also hold here that an assembly or Panchayat committed to engage in any constructive
work that does not offend the fundamental rights of an individual will not stand on the same
footing of Khap Phanchayat. Before we proceed to issue directions to meet the challenges of
honour crime which includes honour killing, it is necessary to note that as many as 288 cases of
honour killing were reported between 2014 and 2016. According to the data of National Crime
Records Bureau (NCRB), 28 honour killing cases were reported in 2014, 192 in 2015 and 68 in
the year 2016.

50. We may note with profit that honour killings are condemned as a serious human rights violation
and are addressed by certain international instruments. The Council of Europe Convention on
Preventing and Combating Violence Against Women and Domestic Violence addresses this
issue. Article 42 reads thus:-

Article 42 Unacceptable justifications for crimes, including crimes committed in the name of
so-called honour
1. Parties shall take the necessary legislative or other measures to ensure that, in criminal
proceedings initiated following the commission of any of the acts of violence covered
by the scope of this Convention, culture, custom, religion, tradition or so-called honour
shall not be regarded as justification for such acts. This covers, in particular, claims that
the victim has transgressed cultural, religious, social or traditional norms or customs of
appropriate behaviour.
2. Parties shall take the necessary legislative or other measures to ensure that incitement
by any person of a child to commit any of the acts referred to in paragraph 1 shall not
diminish the criminal liability of that person for the acts committed.

51. Once the fundamental right is inherent in a person, the intolerant groups who subscribe to
the view of superiority class complex or higher clan cannot scuttle the right of a person by
leaning on any kind of philosophy, moral or social, or self-proclaimed elevation. Therefore, for
the sustenance of the legitimate rights of young couples or anyone associated with them and
keeping in view the role of this Court as the guardian and protector of the constitutional rights
of the citizens and further to usher in an atmosphere where the fear to get into wedlock because
of the threat of the collective is dispelled, it is necessary to issue directives and we do so on the
foundation of the principle stated in Lakshmi Kant Pandey v. Union of India15, Vishaka and
others v. State of Rajasthan and others 16 and Prakash Singh and others v. Union of India and
others17.

52. It is worthy to note that certain legislations have come into existence to do away with social
menaces like Sati and Dowry. It is because such legislations are in accord with our Constitution.
Similarly, protection of human rights is the elan vital of our Constitution that epitomizes
humanness and the said conceptual epitome of humanity completely ostracizes any idea or
prohibition or edict that creates a hollowness in the inalienable rights of the citizens who enjoy
their rights on the foundation of freedom and on the fulcrum of justice that is fair, equitable and
proportionate. There cannot be any assault on human dignity as it has the potentiality to choke
the majesty of law. Therefore, we would recommend to the legislature to bring law appositely
covering the field of honour killing. In this regard, we may usefully refer to the authority wherein
this (1984) 2 SCC 244 (1997) 6 SCC 241 (2006) 8 SCC 1 Court has made such recommendation.
In Samrendra Beura v. Union of India and others18, this Court held:-

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16. Though such amendments have been made by Parliament under the 1950 Act and the
1957 Act, yet no such amendment has been incorporated in the Air Force Act, 1950. The
aforesaid provisions, as we perceive, have been incorporated in both the statutes to avoid
hardship to persons convicted by the Court Martial. Similar hardship is suffered by the
persons who are sentenced to imprisonment under various provisions of the Act. Keeping
in view the aforesaid amendment in the other two enactments and regard being had to
the purpose of the amendment and the totality of the circumstances, we think it apt to
recommend the Union of India to seriously consider to bring an amendment in the Act so
that the hardships faced by the persons convicted by the Court Martial are avoided.

53. Mr. Raju Ramachandran, learned senior counsel being assisted by Mr. Gaurav Agarwal, has filed
certain suggestions for issuing guidelines. The Union of India has also given certain suggestions
to be taken into account till the legislation is made. To meet the challenges of the agonising effect
of honour crime, we think that there has to be preventive, remedial and punitive measures and,
accordingly, we state the broad contours and the modalities with liberty to the executive and
the police administration of (2013) 14 SCC 672 the concerned States to add further measures to
evolve a robust mechanism for the stated purposes. I. Preventive Steps:-
(a) The State Governments should forthwith identify Districts, Sub-Divisions and/or Villages
where instances of honour killing or assembly of Khap Panchayats have been reported in
the recent past, e.g., in the last five years.
(b) The Secretary, Home Department of the concerned States shall issue directives/advisories
to the Superintendent of Police of the concerned Districts for ensuring that the Officer
Incharge of the Police Stations of the identified areas are extra cautious if any instance of
inter-caste or inter-religious marriage within their jurisdiction comes to their notice.
(c) If information about any proposed gathering of a Khap Panchayat comes to the knowledge
of any police officer or any officer of the District Administration, he shall forthwith inform
his immediate superior officer and also simultaneously intimate the jurisdictional Deputy
Superintendent of Police and Superintendent of Police.
(d) On receiving such information, the Deputy Superintendent of Police (or such senior
police officer as identified by the State Governments with respect to the area/district) shall
immediately interact with the members of the Khap Panchayat and impress upon them
that convening of such meeting/gathering is not permissible in law and to eschew from
going ahead with such a meeting. Additionally, he should issue appropriate directions to
the Officer Incharge of the jurisdictional Police Station to be vigilant and, if necessary, to
deploy adequate police force for prevention of assembly of the proposed gathering.
(e) Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of
Police shall personally remain present during the meeting and impress upon the assembly
that no decision can be taken to cause any harm to the couple or the family members of the
couple, failing which each one participating in the meeting besides the organisers would
be personally liable for criminal prosecution. He shall also ensure that video recording of
the discussion and participation of the members of the assembly is done on the basis of
which the law enforcing machinery can resort to suitable action.

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(f) If the Deputy Superintendent of Police, after interaction with the members of the Khap
Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to
cause harm to the couple or members of their family, he shall forthwith submit a proposal to
the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of
the concerned area for issuing orders to take preventive steps under the Cr.P.C., including
by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the
participants in the assembly under Section 151 Cr.P.C.

(g) The Home Department of the Government of India must take initiative and work in
coordination with the State Governments for sensitising the law enforcement agencies
and by involving all the stake holders to identify the measures for prevention of such
violence and to implement the constitutional goal of social justice and the rule of law.

(h) There should be an institutional machinery with the necessary coordination of all
the stakeholders. The different State Governments and the Centre ought to work on
sensitization of the law enforcement agencies to mandate social initiatives and awareness
to curb such violence. II.

Remedial Measures:-
(a) Despite the preventive measures taken by the State Police, if it comes to the notice of the

local police that the Khap Panchayat has taken place and it has passed any diktat to take
action against a couple/family of an inter-caste or inter-religious marriage (or any other
marriage which does not meet their acceptance), the jurisdictional police official shall
cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal
Code including Sections 141, 143, 503 read with 506 of IPC.
(b) Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent
of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective
investigation of the crime is done and taken to its logical end with promptitude.
(c) Additionally, immediate steps should be taken to provide security to the couple/family
and, if necessary, to remove them to a safe house within the same district or elsewhere
keeping in mind their safety and threat perception. The State Government may consider
of establishing a safe house at each District Headquarter for that purpose. Such safe houses
can cater to accommodate
(i) young bachelor-bachelorette couples whose relationship is being opposed by their

families /local community/Khaps and
(ii) young married couples (of an inter-caste or inter-religious or any other marriage

being opposed by their families/local community/Khaps). Such safe houses may
be placed under the supervision of the jurisdictional District Magistrate and
Superintendent of Police.
(d) The District Magistrate/Superintendent of Police must deal with the complaint regarding
threat administered to such couple/family with utmost sensitivity. It should be first
ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary,
they may be provided logistical support for solemnising their marriage and/or for being
duly registered under police protection, if they so desire. After the marriage, if the couple
so desire, they can be provided accommodation on payment of nominal charges in the

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safe house initially for a period of one month to be extended on monthly basis but not
exceeding one year in aggregate, depending on their threat assessment on case to case
basis.
(e) The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette
or a young married couple) or upon receiving information from an independent source
that the relationship/marriage of such couple is opposed by their family members/local
community/Khaps shall be entrusted by the District Magistrate/ Superintendent of
Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a
preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception.
On being satisfied as to the authenticity of such threats, he shall immediately submit a
report to the Superintendent of Police in not later than one week.
(f) The District Superintendent of Police, upon receipt of such report, shall direct the Deputy
Superintendent of Police incharge of the concerned sub-division to cause to register an
F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151
of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the
progress of investigation and ensure that the same is completed and taken to its logical end
with promptitude. In the course of investigation, the concerned persons shall be booked
without any exception including the members who have participated in the assembly. If
the involvement of the members of Khap Panchayat comes to the fore, they shall also
be charged for the offence of conspiracy or abetment, as the case may be. III. Punitive
Measures:-
(a) Any failure by either the police or district officer/officials to comply with the

aforesaid directions shall be considered as an act of deliberate negligence and/or
misconduct for which departmental action must be taken under the service rules.
The departmental action shall be initiated and taken to its logical end, preferably not
exceeding six months, by the authority of the first instance.
(b) In terms of the ruling of this Court in Arumugam Servai (supra), the States are
directed to take disciplinary action against the concerned officials if it is found that
(i) such official(s) did not prevent the incident, despite having prior knowledge of
it, or (ii) where the incident had already occurred, such official(s) did not promptly
apprehend and institute criminal proceedings against the culprits.
(c) The State Governments shall create Special Cells in every District comprising of
the Superintendent of Police, the District Social Welfare Officer and District Adi-
Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat
to couples of inter-caste marriage.
(d) These Special Cells shall create a 24 hour helpline to receive and register such
complaints and to provide necessary assistance/advice and protection to the couple.
(e) The criminal cases pertaining to honour killing or violence to the couple(s) shall
be tried before the designated Court/Fast Track Court earmarked for that purpose.
The trial must proceed on day to day basis to be concluded preferably within six
months from the date of taking cognizance of the offence. We may hasten to add
that this direction shall apply even to pending cases. The concerned District Judge

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shall assign those cases, as far as possible, to one jurisdictional court so as to ensure
expeditious disposal thereof.
54. The measures we have directed to be taken have to be carried out within six weeks hence by the
respondent- States. Reports of compliance be filed within the said period before the Registry of
this Court.
55. The Writ Petition is, accordingly, disposed of. There shall be no order as to costs.

qqq

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SUKHENDU DAS Versus RITA MUKHERJEE

Supreme Court of India

Bench: Hon’ble Mr. Justice S.A. Bobde and Hon’ble Mr. Justice L. Nageswara Rao

Sukhendu Das .... Appellant
Versus

Rita Mukherjee .... Respondent

Civil Appeal No. 7186 of 2016

Decided on : 25th July, 2018

• The Appellant and the Respondent are District Judges working in the State of West
Bengal. Their marriage was performed on 19th June, 1992 as per the Special Marriage
Act, 1954 (hereinafter referred to as “the Act”). A girl child was born out of the wedlock
on 14th April, 1993. There was matrimonial discord between the Appellant and the
Respondent and they were living separately since the year 2000. The Appellant filed
an application under Section 27 of the Act seeking a divorce.

• This court in a series of judgments has exercised its inherent powers under Article
142 of the Constitution for dissolution of a marriage where the Court finds that the
marriage is totally unworkable, emotionally dead, beyond salvage and has broken
down irretrievably, even if thefacts of the case do not provide a ground in law on which
the divorce could be granted [Manish Goel v. Rohini Goel Admittedly, the Appellant
and the Respondent have been living separately for more than 17 yearsand it will not
be possible for the parties to live together and there is no purpose in compellingthe
parties to live together in matrimony [Rishikesh Sharma v. Saroj Sharma47]. The
daughter ofthe Appellant and the Respondent is aged about 24 years and her custody
is not in issue before us. In the peculiar facts of this case and in order to do complete
justice between the parties, we allow the Appeal in exercise of our power under Article
142 of the Constitution of India, For the aforementioned reasons, the Appeal is allowed
and the application for divorce filed bythe Appellant under Section 27 of the Act is
allowed.

JUDGMENT

Hon’ble Mr. Justice L. Nageswara Rao :—
1. The Appellant and the Respondent are District Judges working in the State of West Bengal. Their

marriage was performed on 19th June, 1992 as per the Special Marriage Act, 1954 (hereinafter
referred to as “the Act”). A girl child was born out of the wedlock on 14th April, 1993. There was
matrimonial discord between the Appellant and the Respondent and they were living separately
since the year 2000. The Appellant filed an application under Section 27 of the Act seeking a
divorce.

page no. | 232 |

SUKHENDU DAS Versus RITA MUKHERJEE

2. The Appellant alleged that the differences arose because of the improper behavior of the
Respondent in not showing due respect to his ailing father. It was further alleged that the
Respondent deserted him and refused to give the custody of the child to him. The Appellant
further averred in the application that the Respondent did not visit him even when he was
seriously ill. The Respondent is accused of using intemperate language and threatening the
Appellant with filing of criminal cases if he perused the petition for divorce which he proposed
in the year 2005.

3. The Respondent filed a written statement denying the allegations made in the application filed
by the applicant for divorce. She refuted all the averments in the application and sought for
dismissal of the application for divorce. The Respondent did not participate in the proceedings
before the trial court after filing the written statement. The Chief Judge, City Civil Court, Calcutta
by the judgment dated 6th August, 2009 dismissed the application for divorce. The Appeal filed
against the said judgment was dismissed by the High Court of Calcutta on 4th April, 2012. The
Respondent did not seek to appear before the High Court also. The correctness of the judgment
of the High Court is assailed in the above Appeal.

4. After referring to the pleadings in the case, the trial court found that the Appellant failed to prove
cruelty on the part of the Respondent. The evidence adduced by the Appellant was scrutinized
by the trial court to come to a conclusion that the Appellant did not make out a case for divorce.
The High Court, taking note of the fact that the Appellant and the Respondent are judicial
officers, made an attempt for conciliation between the parties. However, in spite of the effort of
the High Court, both the Appellant and the Respondent did not appear personally before the
High Court. Despite taking note of the fact that the Appellant and the Respondent were living
separately since the year 2000, the High Court dismissed the Appeal by holding that irretrievable
breakdown of marriage cannot be a ground for divorce. The High Court held that the Appellant
failed to prove mental cruelty on the part of the Respondent.

5. Notice was issued to the Respondent on 8th October, 2012 to explore the possibility of an
amicable resolution to the matrimonial dispute. The parties were directed to appear before
the Mediation Centre of the Supreme Court on 21st November, 2012. The Respondent did not
appear before the Mediation Centre in spite of service of the Notice. She chose not to appear
before this Court. Fresh Notice was ordered on 17th August, 2015 but the Respondent did not
appear in spite of receipt of Notice again.

6. Mr. Raja Chatterjee, learned counsel appearing for the Appellant submitted that the Respondent
deserted the Appellant about 17 years back and she refused to come back and live with him. Apart
from the allegation of desertion, the learned counsel also alleged mental cruelty on the part of
the Respondent who threatened the Appellant in the year 2005 that she would get a criminal
case filed against him if he did not stop attempts to get the divorce. The learned counsel further
submitted that the Appellant and the Respondent have been living apart due to matrimonial
discord since 17 years and for all practical purposes the marriage has broken down.

7. The Respondent, who did not appear before the trial court after filing of written statement,
did not respond to the request made by the High Court for personal appearance. In spite of
service of Notice, the Respondent did not show any interest to appear in this Court also. This
conduct of the Respondent by itself would indicate that she is not interested in living with the
Appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay

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in a dead marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya Ghosh1]. The
High Court observed that no attempt was made by either of the parties to be posted at the same
place. Without entering into the disputed facts of the case, we are of the opinion that there is no
likelihood of the Appellant and the Respondent living together and for all practical purposes
there is an irretrievable breakdown of the marriage.
8. This court in a series of judgments has exercised its inherent powers under Article 142 of the
Constitution for dissolution of a marriage where the Court finds that the marriage is totally
unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the
facts of the case do not provide a ground in law on which the divorce could be granted [Manish
Goel v. Rohini Goel2].
Admittedly, the Appellant and the Respondent have been living separately for more than 17 years
and it will not be possible for the parties to live together and there is no purpose in compelling
the parties to live together in matrimony [Rishikesh Sharma v. Saroj Sharma3]. The daughter of
the Appellant and the Respondent is aged about 24 years and her custody is not in issue before
us. In the peculiar facts of this case and in order to do complete justice between the parties, we
allow the Appeal in exercise of our power under Article 142 of the Constitution of India, 1950.
9. For the aforementioned reasons, the Appeal is allowed and the application for divorce filed by
the Appellant under Section 27 of the Act is allowed.

qqq

1 (2007) 4 SCC 511 [para101 (xiv)]
2 (2010) 4 SCC 393 [para 11]
3 (2007) 2 SCC 263 [para 4 and 5]
page no. | 234 |

Bipin Chander Jaisinghbhai Shah versus Prabhawati

Bipin Chander Jaisinghbhai Shah versus Prabhawati

Supreme Court of India
Bench: Hon’ble Mr. Justice Bhuvneshwar P. Sinha, Hon’ble Mr. Justice B. Jagannadhadas &

Hon’ble Mr. Justice T.L. Venkatarama Aiyyar
Bipin Chander Jaisinghbhai Shah
Versus
Prabhawati.

1957 AIR 176

Equivalent Citations: 1956 Scr 838
Decided on : 19th October, 1956

HMA-section 13- divorce- ground of desertion - For the offence of desertion, so far as the
deserting spouse is concerned, two essential conditions must be there, namely

(1) the factum of separation, and

(2) the intention to bring cohabitation permanently to an end (animus deserendi).

Similarly two elements are essential so far as the deserted spouse is concerned:

(1) the absence of consent, and

(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention aforesaid. The petitioner for divorce bears the
burden of proving those elements in the two spouses respectively....

Desertion is a matter of inference to be drawn from the facts and circumstances of each
case. The inference may be drawn from certain facts which may not in another case be
capable of leading to the same inference; that is to say, the facts have to be viewed as to
the purpose which is revealed by those acts or by conduct and expression of intention,
both anterior and subsequent to the actual acts of separation. If, in fact, there has been
a separation the essential question always is whether that act could be attributable to an
animus deserendi. The offence of desertion commences when the fact of separation and
the animus deserendi co-exist. But it is not necessary that they should commence at the
same time. The de facto separation may have commenced without the necessary animus
deserendi coincide in point of time.

JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 247 of 1953. Appeal by special leave from
the judgment and decree dated August 22, 1952 of the Bombay High Court in Appeal No. 66 of 1952
arising out of the decree dated March 7, 1952 of Bombay High Court in its Ordinary Original Civil
Jurisdiction in Suit No. 1177 of 1951.

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Hon’ble Mr. Justice Bhuvneshwar P. Sinha :—
This is an appeal by special leave against the judgment and decree of the High Court of Judicature
at Bombay dated August 22,1952, reversing those of a single Judge of that Court on the Original
Side, dated March 7,1952, by which he had granted a decree for dissolution of marriage between the
appellant and the respondent.
The facts and circumstances of this case may be stated as follows: The appellant, who was the plaintiff,
and the respondent were married at Patan on April 20, 1942, according to Hindu rites of the Jain
Community. The families of both the parties belong to Patan, which is a town in Gujarat, about a
night’s rail journey from Bombay. They lived in Bombay in a two-room flat which was in occupation of
the appellant’s family consisting of his parents and his two sisters, who occupied the larger room called
the hall, and the plaintiff and the defendant who occupied the smaller room called the kitchen. The
appellant’s mother who is a patient of asthma lived mostly at Patan. There is an issue of the marriage,
a son named Kirit, born on September 10, 1945. The defendant’s parents lived mostly at Jaigaon in the
East Khandesh district in Bombay. The parties appear to have lived happily in Bombay until a third
party named Mahendra, a friend of the family came upon the scene and began to live with the family
in their Bombay flat some time in 1946, after his discharge from the army. On January 8, 1947, the
appellant left for England on business. It was the plaintiff ’s case that during his absence from Bombay
the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiff ’s
departure for England she carried on “amorous correspondence” with Mahendra who continued to
stay with the plaintiff ’s family in Bombay. One of the letters written by the defendant to Mahendra
while staying at the plaintiff ’s flat in Bombay, is Ex. E as officially translated in English, the original
being in Gujerati except a few words written in faulty English. This letter is dated April,1947, written
from the plaintiff ’s house at Patan, where the defendant bad been staying with her mother-in-law. This
letter had been annexed to the plaint with the official translation. It was denied by the defendant in her
written statement. But at the trial her counsel admitted it to have been written by her to Mahendra.
As this letter started all the trouble between the parties to this litigation, it will have to be set out in
extenso hereinafter. Continuing the plaintiff ’s narrative of the events as alleged in the plaint and in his
evidence, the plaintiff returned to Bombay from abroadon May 20, 1947. To receive him back from
his foreign journey the whole family’ including the defendant was there in Bombay. According to the
plaintiff, he found that on the first night after his return his bed had been made in the hall occupied by
his father and that night he slept away from his wife. As this incident is said to have some significance
in the narrative of events leading up to the separation between the husband and the wife and about
the reason for which the parties differ, it will have to be examined in detail later. Next morning, that
is to say, on May 21, 1947, the plaintiff ’s father handed over the letter aforesaid to the plaintiff, who
recognised it as being in the familiar handwriting of his wife. He decided to tackle his wife with
reference to the letter. He handed it to a photographer to have photo copies made of the same. That
very day in the evening he asked his wife as to why she had addressed the letter to Mahendra. She at
first denied having written any letter and asked to see the letter upon which the plaintiff informed her
that it was with the photographer with a view to photo copies being made. After receiving the letter
and the photo copies from the photographer on May 23, the plaintiff showed the defendant the photo
copy of the letter in controversy between them at that stage and then the defendant is alleged to have
admitted having written the letter to Mahendra and to have further told the plaintiff that Mahendra
was a better man than him and that Mahendra loved her and she loved him. The next important event
in the narrative is what happened on May 24, 1947. On the morning of that day, while the plaintiff

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Bipin Chander Jaisinghbhai Shah versus Prabhawati

was getting ready to go to his business office his wife is alleged to have told him that she had packed
her luggage and was ready to go to Jalgaon on the ostensible ground that there was a marriage in her
father’s family. The plaintiff told her that if she had made up her mind to go, he would send the car to
take her to the station and offered to pay her Rs. 100 for her expenses. But she refused the offer. She
left Bombay apparently in the plaintiff ’s absence for Jalgaon by the afternoon train. when the plaintiff
came back home from his office, he “discovered that she had taken away everything with her and had
left nothing behind”. It may be added here that the plaintiff ’s mother had left for Patan with his son
some days previously. Plaintiff ‘s case further is that the defendant never came back to Bombay to live
with him, nor did she write any letters from Jalgaon, where she stayed most of the time. It appears
further that the plaintiff took a very hasty, ‘if not also a foolish, step of having a letter addressed to the
defendant by his solicitor on July 15, 1947, charging her with intimacy between herself and Mahendra
and asking her to send back the little boy. ,The parties violently differ on the intent and effect of this
letter which will have to be set out in extenso at the appropriate place. No answer to this letter was
received by the plaintiff. In November, 1947, the plaintiff ’s mother came from Patan to Bombay and
informed the plaintiff that the defendant might be expected in Bombay a few days later. Thereupon the
plaintiff sent a telegram to his father-in-law at Patan. The telegram is worded as follows:-
“Must not send Prabha. Letter posted.
Wishing happy new year”.
The telegram stated that a letter bad been posted. The defendant denied that any such letter bad been
received by her or by her father. Hence the original, if any, is not on the record. But the plaintiff
produced what he alleged to be a carbon copy of that letter which purports to have been written on
November 13, 1947, the date on which the telegram was despatched. An English translation of that
letter is Ex. C and is to the following effect:-
Bombay 13-11-47 To Rajmanya Rajeshri Seth Popatlal & others. There is no letter from you recently.
You must have received the telegram sent by me today.
Further, this is to inform you that I have received information from my Mami (mother) thatPrabha is
going to come to Bombay in 3 or 4 days. I am surprised to hear this news; Ever since she has gone to
Jalgaon, there has been not a single letter from her to this day. Not only that, but, although you know
everything, neither you nor any one on your behalf has come to see me in this connection. What has
made Prabha thus inclined to come all of a sudden! After her behaviour while going to Jalgaon for: the
marriage, (and after), her letter to Mahendra and her words. ‘He is better than you-Has feeling for’ me
and I love him’ and all this, I was afraid that she would not set up a house with me. Hence when my
mother gave me the news of her return, I was surprised.
I have not the slightest objection to the return of Prabha, but if she gives such shameless replies to me
and shows such improper behaviour, I shall not be able to tolerate the same. If she now really realises
her mistake and if she is really repenting and wants sincerely to come, please make her write a reply
to this letter. On getting a letter from her, I shall personally come to Patan to fetch her. Kirit is young.
For his sake also, it is necessary to persuade Prabha.
Further, I have to state that I have so far kept peace. I have made efforts to call back Prabha. Please
understand this to her my final effort. If even now Prabha does not give up her obstinacy, I am not
responsible and (then) do not blame me.

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landmark judgments of supreme court of india on MARRIAGE & DIVORCE

Well, that is all for the present. Kirit must be bale and hearty. My new year’s greetings to you all. Please
do assign to me such work-as I can manage.
Written by Bipinchandra”
The plaintiff stated that be received no answer either to the telegram or to the letter. Two days later,
on, November 15, the plaintiff ’s father addressed a letter to the defendant’s father, which is Ex. D. This
letter makes reference. to the defendant’s mother having, talked to the plaintiffs mother about sending
the defendant I to Bombay and to the fact that the plaintiff bad sent a telegram on November 13, and
ends with the expression of opinion by the plaintiff ’s father that it was “absolutely necessary” that
the plaintiff ’s consent should be obtained before sending the defendant to Bombay. This letter also
remained unanswered. According to the plaintiff, nothing happened until May, 1948, when he went to
Patan and there met the defendant and told her “that if she repented for her relations with Mahendra
in the interests of the child as well as our own interests she could come back and live with me”. To that
the defendant is said to have replied that in November, 1947, as a result of pressure from her father
and the community, she had-been thinking of coming to live with the plaintiff) but that she had then
decided not to do so. The defendant has given quite a different version of this interview. The second
interview between the plaintiff and the defendant again took place at Patan some time later in 1948
when the plaintiff went there to see her on coming to know that she had been suffering from typhoid,.
At that time also she evinced no desire to come back to the plaintiff. The third and the last interview
between the plaintiff and the defendant took place at Jalgaon in April-May, 1949. At that interview also
the defendant turned down the plaintiff ’s request that at least in the interests of the child she should
come back to him. According to the plaintiff, since May 24, 1947, when the defendant left his home
in Bombay of her own accord, she bad not come back to her marital home. The suit was commenced
by the plaintiff by filing the plaint dated July 4, 1951, substantially on the ground that the defendant
bad been in desertion ever since May 24, 1947, without reasonable cause and without his consent and
against his will for a period of over four years. He therefore prayed for a decree for a dissolution of his
marriage with the defendant and for the custody of the minor child.
The suit was contested by the defendant by a written statement filed on February 4, 1952, substantially
on the ground that it was the plaintiff who by his treatment of her after his return from England had
made her life unbearable and compelled her to leave her marital home against her wishes on or about
May 24, 1.947. She denied any intimacy between herself and Mahendra or that she was confronted by
the plaintiff with a photostat copy of the letter., Ex. E, or that she had confessed any such intimacy to
the plaintiff. She admitted having received the Attorney’s letter, Ex. A, and also that she did not reply
to that letter. She adduced her father’s advice as the reason for not sending any answer to that letter.
She added that her paternal uncle Bhogilal (since deceased) and his son Babubhai saw the plaintiff in
Bombay at the instance of the defendant and her father and that the plaintiff turned down their request
for taking her back. She also made reference to the negotiations between the defendant’s mother and
the plaintiff ’s mother to take the defendant back to Bombay and that the defendant could not go to
Bombay as a result of the telegram of November 13, 1947, and the plaintiff ’s father’s letter of November
15, 1947, aforesaid. She also stated that the defendant and her son, Kirit, both lived with,the plaintiff ’s
family at Patan for over four months and off and on on several occasions. The defendant’s definite case
is that she had always been ready and willing to go back to the plaintiff and that it was the plaintiff
who all along had been wailfully refusing to keep her and to cohabit with her. On those allegations she
resisted the plaintiff ’s claim for a decree for a dissolution of the marriage. On those pleadings a single
issue was joined between the parties, namely,-

page no. | 238 |

Bipin Chander Jaisinghbhai Shah versus Prabhawati

“Whether the defendant deserted the plaintiff for a continuous period of over four years prior to the
filing of the suit”.
At the trial held by Tendolkar, J. of the Bombay High Court on the Original Side, the plaintiff examined
only himself in support of his case. The defendant examined herself, her father, Popatlal, and her
cousin, Bhogilal, in support of her case that she had been all along ready and willing to go back to her
marital home and that in spite of repeated efforts on her part through her relations the plaintiff had
been persistently refusing to take her back.
The learned trial Judge answered the only issue in the case in the affirmative and granted a decree
for divorce in favour of the plaintiff, but made DO order as to the costs of the suit. He held that the
letter, Ex. E “reads like a love letter written by a girl to her paramour. The reference to both of them
having been anxious about something and there being now no need to be anxious any more can only
be to a possible fear that she might miss her monthly periods and her having got her monthly period
thereafter, because, if it were not so and the reference was to anything innocent, there was nothing
that she should have repented later on in her mind as she says she did, nor should there have been
occasion for saying ‘after all love is such an affair’.” With reference to that letter he further held that it
was capable of the interpretation that she had misbehaved with Mahendra and that she was conscious
of her guilt. With reference to the incident of May 24, the learned Judge observed that having regard
to the demeanour of the plaintiff and of the defendant in the witness box, he was inclined to prefer the
husband’s testimony to that of the wife in all matters in which there was a conflict. He held therefore
that there was desertion with the necessary animus deserendi and that the defendant had failed to
prove that she entertained a bonafide intention to come back to the marital home, that is to say, there
was no animus revertendi. With reference to the contention that the solicitor’s letter of July 15,1947,
had terminated the desertion, if any, he held that it was not well founded inasmuch as the defendant
had at no time a genuine desire to return to her husband. He made no reference to the prayer in the
plaint that the custody of the child should be given to the father, perhaps because that prayer was not
pressed. The defendant preferred an appeal under the Letters Patent which was heard by a. Division
Bench consisting of Chagla C.J. and Bhagwati J. The Appellate Bench, allowed the appeal, set aside the
decision of the trial Judge and dismissed the suit with costs. It held that the defendant was not guilty of
desertion, that the letter of July 15, 1947, clearly established that it was the ‘plaintiff who had deserted
the defendant. Alternatively, the Appellate Court held that even assuming that the defendant was in
desertion as a result of what had happened on May 24, and subsequently, the letter aforesaid bad the
effect of putting an end to that desertion. In its judgment the letter, Ex. E, did not justify the plaintiff
having any reasonable suspicions about his wife’s guilt and that the oral evidence of the defendant
and her relations proved the wife’s anxiety to return back to her husband and of the obduracy of the
husband in refusing to take the wife back. The plaintiff made an application to the High Court for
leave to appeal to this Court. The leave asked for was refused by another Division Bench consisting of
the Chief Justice and Dixit J. Thereafter the plaintiff moved this Court and obtained special leave to
appeal from the judgment of the Appellate Bench of the High Court.
In this appeal the learned Attorney-General appearing on behalf of the appellant and the learned
Solicitor-General appearing on behalf of the respondent have placed all relevant considerations of
fact and law before us, and we are beholden to them for the great assistance they rendered to us
in deciding this difficult case. The difficulty is enhanced by the fact that the two courts below have
taken diametrically opposite views of the facts of the case which depend mostly upon oral testimony
of the plaintiff-husband and the defendant-wife and not corroborated in many respects on either

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landmark judgments of supreme court of india on MARRIAGE & DIVORCE

side. It is a case of the husband’s testimony alone on his side and the wife’s testimony aided by that
of her father and her cousin. As already indicated, the learned trial Judge was strongly in favour of
preferring the husband’s testimony to that of the wife whenever there was any conflict. But he made
no reference to the testimony of the defendant’s father and cousin which, if believed, would give an
entirely different colour to the case. Before we deal with the points in controversy, it is convenient
here to make certain general of observations on the history of the law on the subject and the well
established general principles on which such cases are determined. The suit giving rise to this appeal
is based on section 3(1) (d) of the Bombay Hindu Divorce Act’, XXII of 1947, (which hereinafter will
be referred to as “The Act”) which came into force on May 12, 1947, the date the Governor’s assent
was published in the Bombay Government Gazette. This Act, so far as the Bombay Province, as it
then was, was concerned, was the first step in revolutionizing the law of matrimonial relationship,
and, as the Preamble shows, was meant “to provide for a right of divorce among all communities of
Hindus in certain circumstances”. Before the enactment, dissolution of a Hindu marriage particularly
amongst what were called the regenerate classes was unknown to general Hindu law and was wholly
inconsistent with the basic conception of a Hindu marriage as a sacrament, that is to say, a holy alliance
for the performance of religious duties. According to the Shastras, marriage amongst the Hindus was
the last of the ten sacraments enjoined by the Hindu religion for purification. Hence according to
strict Hindu law as given by the Samhitas and as developed by the commentators, a Hindu marriage
could not be dissolved on any-ground whatsoever, even on account of degradation in the hierarchy of
castes or apostacy. But custom’, particularly amongst the tribal and what used to be called the lower
castes recognised divorce on rather easy terms. Such customs of divorce on easy terms have been in
some instances held by the courts to be against public policy. The Act in section 3 sets out the grounds
of divorce. It is noticeable that the Act does not recognise adultery simpliciter as one of the grounds
of divorce, though cl. (f) renders the fact that a husband “has any other woman as a concubine” and
that a wife “is a concubine of any other man or leads the life of a prostitute” a ground of divorce. In the
present case we are immediately concerned with the provisions of s. 3(1)(d), which are in these terms:-
3. (1) A husband or wife may sue for divorce on any of the following grounds, namely:-
............................................
(d) that the defendant has deserted the plaintiff for a continuous period of four years”.
“Desertion” has been defined in section 2(b) in these terms:-
‘Desert’ means to desert without reasonable cause and without the consent or against the will of the
spouse”. It will be seen that the definition is tautological and not very helpful and leads us to the
Common Law of England where in spite of repeated legislation on the subject of matrimonial law, no
attempt has been made to define “desertion”. Hence a large body of case law has developed round the
legal significance of “desertion”. “Marriage” under the Act means “a marriage between Hindus whether
contracted before or after the coming into operation of this Act”. “Husband” means a Hindu husband
and “wife” means a Hindu wife.
In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights. But
by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards was made
a ground for a suit for judicial separation. It was not till 1937 that by the Matrimonial Causes Act,
1937, desertion without cause for a period of three years immediately preceding the institution of
proceedings was made a ground for divorce. The law has now been consolidated in the Matrimonial
Causes Act, 1950 (14 Geo. VI, c. 25 ). It would thus appear that desertion as affording a cause of action

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Bipin Chander Jaisinghbhai Shah versus Prabhawati

for a suit for dissolution of marriage is a recent growth even in England. What is desertion? “Rayden
on Divorce” which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law
on the subject in these terms:-
“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting
spouse of bringing cohabitation permanently to on end without reasonable cause and without the
consent of the other spouse; but the physical act of departure by one spouse does not necessarily make
that spouse the deserting party”.
The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of Halsbury’s
Laws of England (3rd Edn.) Vol. 12, in the following words:- “In its essence desertion means the
intentional permanent forsaking and abandonment of one spouse by the other without that other’s
consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view
of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts
at defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce
is the recognition and discharge of the common obligations of the married state; the state of things
may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by
the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. , The
fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of
desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as
a ground for divorce it must exist for a period of at least three years immediately preceding the
presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion
as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence
founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted.
Desertion is a continuing offence”.
Thus the quality of permanence is one of the essential elements which differentiates desertion from
wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example,
anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.’
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must
be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently
to an end (animus deserendi ). Similarly two elements are essential so far as the deserted spouse is con-
cerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce
bears the burden of proving those elements in the two spouses respectively. Here a difference between
the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under
the English law those essential conditions must continue throughout the course of the three years
immediately preceding the institution of the suit for divorce; under the Act, the period is four years
without specifying that it should immediately precede the commencement of proceedings for divorce.
Whether the omission of the last clause has any practical result need not detain us, as it does not
call for decision in the present case. Desertion is a matter of inference to be drawn from the facts
and circumstances of each case. The inference may be drawn from certain facts which may not in
another case be capable of leading to the same inference; that is to say, the facts have to be viewed

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