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Decision To Choose Partner Rests On Individual; State, Society Can’t Intrude: Bombay HC Rejects Habeas Corpus Plea By Major Girl’s Father [READ ORDER]

In Junned Ahmed Mujib Khan v. State of Maharashtra, the Aurangabad Bench observed that the intimacies of marriage, including individual choices on whether or not or whom to marry, lie outside the State control and need to be safeguarded by the Constitutional Courts

By: Nidhi N. Anand, Ramaiah College of Law

The State or society cannot intrude into the right of an individual to choose his/ her marital partner and that decision rests solely on the individual, the Bombay High Court recently said while rejecting a Habeas Corpus petition filed by the father of a woman . The observation was made by a Bench of Justices VK Jadhav and SD Kulkarni in a petition by Junned Ahmed Mujib Khan, the petitioner, seeking directions to produce his daughter Khaleda Subiya in Court and to handover her custody to him.

The daughter was a minor at the time when she went missing though she had attained the majority by the time the case was heard.

The petitioner nevertheless asked the Court to invoke its ‘parens patriae’ jurisdiction on the ground that even though the missing girl is now major, she is a vulnerable adult. The Court, however, rejected the same.

The Court also interacted with the girl in open court and examined her statement wherein she clearly stated that she wanted to continue living with her husband and not with her parents.

The court said that parens patriae jurisdiction of the Court should not transgress into an area of determining the suitability of the partners to a marital tie.

Reliance was placed upon Supreme Court  judgments, particularly the Hadiya case judgment, to hold that Court that parens patriae doctrine has to be exercised only in exceptional situations in case of persons who are incapable of asserting free will such as minors or persons of unsound mind.

The petitioner claimed that his daughter was kidnapped from Aurangabad in 2019 and thereafter, a complaint was lodged with the police leading to registration of FIR against unknown persons. Few days later, the petitioner’s wife informed him that one Fukran Khan was allegedly responsible for the incident and had kidnapped their daughter in collusion with his parents.

Despite recording this statement, the police purportedly did not proceed to take any steps for finding out the whereabouts of the petitioner’s daughter, compelling him to approach the High Court under the writ jurisdiction.

As per the daughter’s version, she had a child in September 2020 when she was nine months short of being an adult and had gotten married in June 2021. The Court discovered that the daughter had expressed her desire to marry her present husband. However, her parents had refused to grant permission for the same. The daughter contended that when she pursued her desire, her parents even subjected her to physical assault and was sent to her maternal uncle’s house from where she ran away to Nagpur. After contacting her husband, the couple moved to Bhainsa in Telangana where she gave birth to a child and got married.

Advocate AV Indrale Patil submitted that in the peculiar facts of the present case it would be just and proper for the Court to invoke the parens patriae doctrine.

The Court observed that while the petitioner-father approached the Court with the bonafide intention to protect the interest of his daughter, the same could not be at the cost to curtail the fundamental rights of the daughter, who, out of her own free will voluntarily got married.

In view of the facts of the present case, the Court opined that the doctrine of parens patriae is inapplicable. The Court, therefore, ordered that the girl is at liberty to live her life in accordance with law.

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