Habeas Corpus Allowed — Right to Inter-Religious Marriage Upheld, Police Protection Ordered Under Article 21
The petitioner, Shahrukhkhan Rahimkhan Pathan, filed a Habeas Corpus petition under Article 226 of the Constitution of India before the Gujarat High Court seeking production of Bijal — a 21-year-old woman he proposed to marry — who had been illegally restrained at the instance of her relatives and neighbours (Respondents 4–9) opposing their inter-religious relationship.
The petitioner and Bijal, both adults, had been in a relationship for over three years and resided in the same village. On 11 August 2017, they applied for registration of their marriage under the Special Marriage Act, 1954, before the Marriage Registrar, Surat. On 19 September 2017 — the date fixed for registration — both were taken into custody by the Special Operations Group (SOG). Bijal was sent to Nari Vikas Gruh, Paldi. The petition followed immediately.
- Bijal had been kept under house arrest by Respondents 4–9 and subjected to such harassment that she had attempted suicide.
- The house of the petitioner’s parents was vandalised by villagers at the instigation of Respondents 4–9, forcing his parents to flee the village.
- The petitioner’s brother was tied to a Neem tree by police constables acting on the directions of PSI Panchal of SOG and brutally beaten — photographs of injuries were produced before the Court.
- Despite a prior order dated 14.09.2017 in SCA No. 7030 of 2017 directing police protection, the petitioner’s aunt’s house was subsequently vandalised and household goods burnt by villagers.
- The couple had been forced to travel to undisclosed locations across the country due to direct threats to their safety.
The Division Bench personally spoke to Bijal in Chambers. The Court found her to be a mature, educated and articulate adult who had taken a fully conscious decision to marry the petitioner. The Court observed that respondents Nos. 4–9 were instigating communal tension and attempting to give a communal colour to what was fundamentally a personal decision of two consenting adults.
The Court unequivocally upheld the constitutional right of every adult citizen to choose their own partner, regardless of religion, and affirmed that no one could endanger life and safety on account of such a choice. The Court also expressed serious concern about the conduct of certain police personnel who appeared to be abetting rather than preventing the violence.
“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes… any one 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…”
— Supreme Court in Lata Singh v. State of U.P., (2006) 5 SCC 475, relied upon by the Court
“Police should act as guardians and protectors, not as predators.”
— Gujarat High Court, Division Bench, in the present judgment
The petition was allowed and Rule was made absolute. The following directions were issued:
- Bijal was declared at liberty to accompany the petitioner of her own free will.
- Police personnel from Sola Police Station, Ahmedabad — not Respondent No. 2 (SOG, Dabhan) who was found untrustworthy — were directed to escort the couple safely to their destination.
- The Superintendent of Police, Kheda-Nadiad was directed to ensure the safety and protection of the lives and property of the petitioner, Bijal and all family members.
- The SP was directed to ensure no retaliatory action was taken by Respondents 4–9 or their associates, or even by police personnel of Respondent No. 2, after the passing of this order.
- All police authorities were directed to immediately extend protection upon any complaint by the petitioner, Bijal or their family — without yielding to any executive or political pressure.