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Forcible separation of spouses a constitutional violation: SHC

Forcible separation of spouses a constitutional violation: SHC

By Jamal Khurshid

KARACHI: Citing articles 35 and 9 of the constitution, the Sindh High Court (SHC) declared on Thursday that the State was duty-bound to protect couples who contracted marriages out of free will.

Forcible separation of spouses, the court observed, was the worst kind of violation of a couple’s fundamental rights. The verdict was given by a division bench headed by Justice Syed Mohammad Farooq Shah during the hearing of a petition of a couple who had contracted a marriage out of their free will. Justice Shah observed that whenever a woman contracts a marriage without the consent of her elders, the family usually tries to break the marriage off.

Petitioner Sumera submitted that she married Nadeem against her parents’ wishes and now her spouse and her in-laws were being harassed by the police on her family’s behest. She maintained that the police lodged a false case of her kidnapping against her husband and his family.

The court observed that in most of the cases such actions are carried out either on account of tribal customs, since freewill marriages are considered a social taboo, or on account of barbarism. However, the court observed that those concocting such plans have to yield to the constitutional commands, laws and Islamic injunctions.

The court further observed that a sane person has the right to contract a marriage with his/her free will, as guaranteed under Article 35 of the constitution which says that the state shall protect the marriage, the family, the mother and the child.

It also observed that not only Article 35 but Article 9 also stands violated when a duly married couple is compelled to live in separation through coercive measures by the police or any other person.

Couples are entitled to enjoy their company and live together without any fear or hindrance, the division bench further observed. When a couple contracts marriage with their consent and freewill but without the permission of their elders it shall be unsafe to call them again and again in the court.

It is the duty of the police to act in aid of the constitution and the law as neither the police nor any other state functionary has any right to harass a married couple or their family members with the motive to cause a separation between the spouses, the bench maintained.

The court directed the police and other official respondents to act strictly in accordance with the law and provide necessary protection to the couple and ensure that no harassment is caused to them.

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