Punjab & Haryana HC: ‘Swayamwar’ A Fundamental Right Under Article 21

The Punjab and Haryana High Court recently observed that the right to marry the person of one’s choice is not a modern one but was prevalent in ancient times as it is mentioned in holy books such as the Ramayana and Mahabharata as ‘Swayamvar,’

According to single-judge Justice Jagmohan Bansal, the Indian Constitution enforces this right as a fundamental right under Article 21.

The petitioner Tek Chand moved the Court seeking quashing of an FIR filed against him for violations of IPC Sections 363 (kidnapping) and 366A (procuring minor girl).

The father of a girl (his wife) claimed that Tek Chanda kidnapped his daughter by enticing her with the promise of marriage.

Tek Chand informed the Court that the girl and he married on July 3, 2019, and that they have two children.

Therefore, the Court quashed an FIR filed against one Tek Chand on the grounds that he had kidnapped the complainant’s daughter under the guise of marriage.

The Court noted that the men and women involved in the matter had attained the age of majority and had entered into marriage though against the wishes of their parents.

However, the Court made it clear that they are happily cohabiting and no one including the Courts and law enforcement agencies, has the right to disturb them.

The Court observed, “They have the right to live their life in the way and manner they like. They are the blessed with two children. Nobody can live a happy life while a criminal case is pending. The government has no right to interfere in the lives of a legally married couple.”

On September 17, 2019, both Tek Chand and the girl (now his wife) had moved the High Court for protection of their lives and liberty. The Court had then directed the senior superintendent of police (SSP), Sri Muktsar Sahib to take note on the representation of the petitioners and act in accordance with law.

The respondents, on the other hand, claimed that the complainant-father had appeared before police authorities and stated that he has no objection if further proceedings against Tek Chand are dropped.

In this regard, the Court stated that because Tek Chand had already married the girl and they were living together, the State had no right to intervene.

The Court stated, “The continuation of criminal proceedings will not only disrupt the petitioner’s life, but it also has the potential to disrupt the lives of respondent No. 3 and their children. Our state is a welfare state, but there is no mechanism in place to provide housing, food, and other basic daily needs to a convicted person’s dependents. In our country, except stray cases of urban population, it is the man who works and cares for his wife and children.”

The Court also highlighted that in Indian culture, marriage is neither a compromise nor a contract, but rather a sacred bond between two families.

“Marriage is not a physical meeting of two people of opposite sexes, but it is the most important and religious institution in our society, where two families become one. The importance of marriage is further supported by the fact that a child born to an unmarried couple is not as recognised as a child born from a duly married couple.”

In light of the above, the Court quashed an FIR filed against Tek Chand.