Gujarat High Court Orders Protection For Inter-Faith Couple, Reiterates SC Guidelines For Preventive & Remedial Action

The High Court was hearing a habeas corpus petition wherein the mother of the corpus alleged that the daughter had been kidnapped by Respondent No. 4 and therefore, it was prayed that the daughter be released before the Court.

The Bench however noted that the corpus was intending to marry Respondent No.4 who was of a different faith and none of them were willing to change the faith of the other. They were determined to move the registration of the marriage under the Special Marriages Act 1954. The High Court tried to reconcile the Petitioner and the husband but it turned out to be futile. Meanwhile, the corpus showed no interest to stay in a women's shelter home.

The Bench ventured forth to observe the decision of the Apex Court in Laxmibai Chandaragi B. and Anr. vs. State of Karnataka and others, (2021) 3 SCC 360 wherein the right to marry a person of one's choice was held integral to Article 21.

Further, in Shakti Vahini vs. Union of India, (2018) 7 SCC 192, it was held:

"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"

Those directives are summarized below:

Preventive Steps:-

1. The State Government should identify districts with instances of honour killings and khap panchayats in the past 5 years.
2. The Home Department should issue directives to the Superintendent of Police in identified areas where inter-caste or inter-faith marriages take place,
3. If information about any gathering of khap panchayat comes to the knowledge of the police then the immediate superior officer should be informed.
4. Upon receiving such information, the State should be vigilant and adequate police should be provided for prevention of this gathering.
5. If the meeting is still conducted, then no decision to harm the couple or the family members should be made. If this condition is violated, immediate criminal action should be taken. The police should also ensure the use of video recordings.
6. If the Khap decides to undertake any harmful action against the couple or the family, the District Magistrate should be informed and Section 144 may be invoked and arrests may be made under Section 151 CrPC.
7. Further, the Home Department of the Government of India must take initiative to sensitise law enforcement agencies and involve all stakeholders to prevent such violence and secure the constitutional goals of social justice.

Remedial Measures:-

1. Immediate security to the couples and family and if required, moving them to a safe house.
2. Upon FIR, prompt investigation should be undertaken.
3. Initial inquiry should be launched to check the authenticity of the threats, consent involved in the couple's marriage etc.

Punitive Measures:-

1. Departmental inquiries against errant police officers for negligence and misconduct.
2. Special cells be created in each district with a Welfare Officer to protect the inter-caste marriage couples from harassment.

Case Title: Sultana Jahangirbhai Mirza vs State Of Gujarat

Case No.: R/SCR.A/3058/2022

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