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State cannot interfere in the Private lives of individuals; Protection denied to Homosexual-transgender couple from harassment

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 29

Case :- WRIT – C No. – 32683 of 2018

Petitioner :- Gulfam Malik And Another

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Avinash Pandey

Counsel for Respondent :- C.S.C.,Ramesh Chandra Yadav

Hon’ble Pankaj Mithal,J.

Hon’ble Ravindra Nath Kakkar,J.

Heard learned counsel for the petitioners and learned Standing Counsel, who has appeared for respondent Nos.1, 2 & 3.

The two petitioners in this petition are young boys alleged to be aged about 20 years and 22 years. Petitioner No.2 is said to be a transgender. They are hardly educated. Petitioner No.1 is doing business of selling of sarees and petitioner No.2 is engaged in dancing work. They may be earning around Rs.10,000/- per month and Rs.8000/- per month respectively.

The petitioners allege that they are childhood friends living in the same residential area and are in love with each other and have decided to live together.

The private respondents No. 4 and 5, who are father and maternal uncle of petitioner No.1, are not accepting the above relationship of the petitioners and as such are harassing them.

The petitioners have therefore, preferred this writ petition seeking a direction upon the respondent authorities to provide them protection so that the private respondents No.4 and 5 may not interfere in their peaceful life.

The argument of learned counsel for the petitioners is that the petitioners are not committing any offence which may warrant interference by any one in their life and as such their living is to be protected.

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There may not be any doubt that the petitioners if they are major are at liberty to live their life in the manner they like and they may not be committing any offence but the State Authorities apparently have no role to play in such private affairs of the individuals.

The problem which has been raised in this petition is of a social nature between the individuals for which there is no cure in law. It is a in house problem which has to be resolved by the members of the family or its solution has to be found by the society.

The Welfare State has to maintain law and order situation and has to provide security to the public at large in general but it does not mean that it is obliged to provide guards to each and every person individually. It is not even possible.

The petitioners have not specifically pleaded or placed any material as to the manner in which their private life is being interfered with by anyone and the nature of threat extended to them or the harassment caused to them.

The petitioners if are aggrieved by any action of the private respondents No. 4 and 5, their remedy lies in common law or either in lodging a first information report or by making a complaint to the Magistrate against the persons so interfering in their life or causing harassment to them.

The writ jurisdiction is an extraordinary discretionary jurisdiction and in the facts and circumstances of the case as nothing serious has been alleged, this court find it difficult to exercise its discretion in such a matter where patently there is no miscarriage of justice and there is no pleadings supported by any material establishing any threat perception to the petitioners or infringement of their right to life and liberty.

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Accordingly in our opinion there is no need for us to exercise our extraordinary jurisdiction in the matter and we dismiss the petition with liberty to the petitioners to take recourse to the remedies as may otherwise be available to them in law or to approach the District Magistrate if so advised to provide security to them as per the Government Order dated 09.05.2014.

The Writ Petition is dismissed with the above observation.

Order Date :- 27.9.2018

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