HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 6245/2022

1. Smt. Santosh Jat D/o Ramjeevan Jat, Aged About 19

Years, Resident Of Jogi Mohalla Sanwali, Tehsil
Maujmabad, District Jaipur Rural.
2. Shree Ram Choudhary S/o Shri Hari Narayan Choudhary,
Jogi Mohalla Sanwali, Tehsil Maujmabad, District Jaipur
Rural.
----Petitioners
Versus
1. State Of Rajasthan, Through Principal Secretary, Home
Department, Government Secretariat, Jaipur.
2. The Director General Of Police, Rajasthan, Jaipur.
3. The Superintendent Of Police, District Jaipur Rural.
4. S.H.O. Police Station, Maujmabad, District Jaipur Rural.
5. Ram Jeevan Jat S/o Ramnaryan Jat, Resident Of Jat
Mohalla Reta, Tehsil Maujmabad, District Jaipur Rural.
6. Shakram S/o Shri Ramgopal Riyad, Resident Of Village
Khudiyal, Jaipur.
----Respondents

For Petitioner(s) : Mr. Rajpal Dhankhar

For State : Mr. Imran Khan, PP
For Respondent No.5 Mr. Gajender Singh Rathore
For Respondent No.6 Mr. Anil Kumar Sharma

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

19/07/2022

Private respondents No.5 and 6 have already appeared.

Learned Public Prosecutor has accepted notice on behalf of

the State respondents No.1 to 4.

Heard the parties.

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With the consent of the parties, the matter is being disposed

of at the stage of admission itself.

Petitioners have sought for protection of their life and liberty,

which is in danger at the hands of private respondents for the

reason that the petitioner No.1 was forcefully married with the

respondent No.6 without her desire and acceptance. The petitioner

No.1 did not recognize the marriage and she is in live-in-

relationship with the petitioner No.2, which is not liked by the

private respondents.

Learned counsel for respondents No.5 and 6 submits that in

Joseph Shine Vs. Union of India reported in (2019) 3 SCC 39,

Hon’ble Supreme court said that the freedom to have a consensual

sexual relationship out side marriage is not permissible, which

does not warrant protection under Article 21 of the Constitution of

India. Learned counsel further submits that in D. Velusamy Vs.

D. Patchaiammal reported in AIR 2011 SC 479, the Hon’ble

Supreme Court laid down certain parameters for recognition of

relationship in the nature of marriage i.e. live-in-relationship and

one of the parameters is that the parties must have voluntarily

cohabited and held themselves out to the world as being akin to

spouses for a significant period of time and they must be

otherwise qualified to enter into a legal marriage including having

no spouse. Therefore, claim of the petitioner of live-in-relationship

is also not acceptable nor it deserves protection.

On the other hand, learned counsel for the petitioner

contends that in the case of S. Khushboo Vs. Kanniammal &

Anr. reported in (2010) 5 SCC 600, the Hon’ble Supreme Court

said that adults willingly engaging in sexual relations out side the

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marital setting is not an offence with exception of ‘adultery’ as

defined under Section 497 IPC.

Learned counsel submits that in the case of Joseph Shine

(supra), the Constitution Bench of the Hon’ble Supreme Court has

struck down Section 497 IPC as unconstitutional. After that, live-

in-relationship between two adults, even though, they were under

some matrimonial tie, would not be an offence.

In the case of Shafin Jahan Vs. Asokan K.M. and Ors.

reported in (2018) 16 SCC 368, the Hon’ble Supreme Court said

that:-
“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”.

Considering the fact that the petitioner have constitutional

right to choose their life partner and it is within their private

domain to have personal relationship with an individual, their right

cannot be infringed except according to the procedure established

by law.

Hence, State respondents are directed to ensure protection

of life and liberty of the petitioners.

With the aforesaid, this petition stands allowed.

Pending application, if any, stands disposed of.

(BIRENDRA KUMAR),J

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