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Dharma Rani vs State And Ors on 7 March, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S. B. Civil Writ Petition No. 2067/1999
Mahesh Chand Sharma S/o Shri Girraj Prasad Sharma, aged
48 years, R/o 10/677, Kaveri Path, Mansarovar, Jaipur.
…..Petitioner
Versus
1. State of Rajasthan through the Secretary, Department
of Home, Govt. of Rajasthan, Secretariat, Jaipur.
2. Additional Superintendent of Police, Jaipur city (north),
Jaipur.
3. Prabhu Devi W/o late Fateh Chand, R/o Mandi Khatikan,
Outside Char Darwaja, Jaipur.
4. Dharma Rani W/o Tikam Chand Haldenia 1/51, Jeen
Mata Ka Khurra, Surajpole Bazar, Jaipur.
…..Respondents

Connected With
S.B. Civil Writ Petition No 1247/2001
Dharma Rani w/o Shri Mahesh Kumar Sharma alias Tkam
Chand Haldeniya, aged 31 years, R/o 151, Jeen Mata Ka
Khurra, Ramganj Bazar, Jaipur.

…..Petitioner
Versus

1. State of Rajasthan through the Secretary, Department
of Home, Govt. of Rajasthan, Secretariat, Jaipur.

2. Director General of Police, Rajasthan, Jaipur.

…..Respondents

For Petitioner(s) : Mr. Ajeet Bhandari, Adv.

For Respondent(s) : Mr. GS Gill, AAG with
Ms. Vandana Sharma, Dy. GC

HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment / Order

Reserved on 27/11/2018
(2 of 33) [CW-2067/1999]

Pronounced on 07/03/2019
Reportable

1. These two writ petitions raise common question of law

and are also in relation to same facts, hence are being

decided jointly.

2. The petitioner Mahesh Chand Sharma, who was working

as an Inspector in the Rajasthan Police, after having already

served for 18 years in Indian Air Force, was asked to get his

DNA Test conducted and was subsequently subjected to

initiation of departmental enquiry vide memorandum dated

16/12/2000 during pendency of the writ petition alleging of

having illicit relations with one Dharma Rani (petitioner in the

connected writ petition) who is a Constable working in the

Rajasthan Police; and also of having begotten a child from

their illicit relations on 24/05/1997.

3. The petitioner Dharma Rani in the connected writ

petition has been charge-sheeted vide memorandum dated

16/12/2000 of living with Mahesh Chand Sharma as husband

and wife in House No.151, Jeen Mata Ka Khurra, Galta Road,

Jaipur. She has been further charged of having stated during

preliminary enquiry conducted on 16/08/1997 of having got

married to one Mahesh Chand Sharma son of Bhagwati

Prasad Sharma on 10/07/1989 at Udaipur and the marriage

having taken place after performing Hindu rites and that she

has been going to and fro to her in-laws place after taking

leave and in the second statement, which she has submitted

to the authorities on 24/12/1998, she has mentioned of the

marriage having taken place at Udaipur in a temple which she
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does not know and also does not know where her in-laws are

staying in Udaipur and thus, has given misleading

statements. The third charge levelled is again of misleading

the authorities by giving wrong date of marriage as

10/07/1989 while in an application for taking casual leave

she has mentioned of sudden marriage having taken place

vide her application dated 13/07/1992 for leave from

08/07/1992 to 12/07/1992. The fourth charge levelled

against her is of her father’s statement contrary to her

version wherein her father has refused to have performed

“Kanya Dan” of his daughter Dharma Rani and has not

participated in her marriage and thus there was no marriage

performed by her with Mahesh Chand Sharma son of

Bhagwati Prasad who has also not been produced during the

course of preliminary enquiry. The further charge is that the

petitioner Dharma Rani has mentioned name of father of her

child Yogendra as Tikam Chand (Mahesh) Haldenia in the card

of ‘Janam Mahotsava” while in the nomination Form No. GA-

126 (RSR) dt.12/04/1993, she has mentioned name of

nominee as Mahesh Chand Sharma. The sixth charge levelled

against her is of having illicit relations with Mahesh Chand

Sharma, Police Inspector and of having begotten a child on

24/05/1997 and she alongwith Mahesh Chand Sharma, Police

Inspector have conducted “Havan” prayer as husband and

wife while performing birth ceremony of the child. Further

allegation is of the petitioner Dharma Rani living with Mahesh

Chand Sharma son of Shri Girraj Prasad, Police Inspector and
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maintaining illicit relations and having acted in contravention

of the Rajasthan Conduct Rules and tarnished police image in

public and thus has committed misconduct.

4. The petitioner Mahesh Chand Sharma had originally

filed writ petition only against the letter dated 30/01/1999

whereby he was directed to get his DNA Test conducted with

further prayer to quash the enquiry which may be conducted

against him.

5. During the pendency of writ, petitioner Mahesh Chand

Sharma had been suspended from service vide order dated

14/03/2001 and this Court vide order dated 23/03/2001

stayed the operation of order of suspension till disposal of the

writ petition and further proceedings of the departmental

enquiry were also stayed till disposal of the writ petition.

Petitioner Mahesh Chand Sharma has attained

superannuation during pendency of writ.

6. Similarly, in writ petition of the petitioner Dharma Rani

vide order dated 28/03/2001, the departmental proceedings

as well as the order of suspension passed against her were

also stayed. She is stated to be still in service while her son

has grown more than 18 years of age.

7. Learned counsel for the petitioners Shri Ajeet Bhandari

has submitted that the action of the respondents in asking

the petitioner Mahesh Chand Sharma to get his DNA Test

conducted was against all norms of service jurisprudence and

the State or its authorities have no authority under service

rules to ask for such test to be conducted and also it has no
(5 of 33) [CW-2067/1999]

relation with the working or field of duties which the

petitioner has to perform. He submits that the respondents

have conducted an enquiry which was beyond their

jurisdiction. Merely on a complaint of neighbours of Dharma

Bai including one Prabhu Devi. A fishing enquiry into the

nature of personal relations of the petitioner could not have

been conducted by the State authorities. The action amounts

to maligning image of the petitioner and destroying his

outstanding service career as well as his private family life

and the purpose behind this was only to tarnish the image

and deprive him of his further promotions. The action

inherently suffers from malice in law and on facts.

8. The petitioner Dharma Rani has also given a statement

that the child born to her is not on account of illicit relations

with the petitioner Mahesh Chand Sharma and the family

members of the petitioner have already given their statement

in this regard pointing out that the petitioner does not have

any illicit relation. It is submitted that the petitioner was also

married to Pushpa Sharma in the year 1973 and had three

children out of the wedlock. While the petitioner was in

defence services, he also underwent vasectomy operation on

03/01/1978 which is already entered in his personal record

maintained by the Indian Air Force. He had an unblemished

career but the action of the respondents has resulted in

tarnishing his public image.

9. There are two aspects which need to be addressed

separately while deciding the present writ petitions.

(6 of 33) [CW-2067/1999]

10. The first aspect is with regard to factual pleadings taken

up by the petitioners wherein, so far as the petitioner Mahesh

Chand Sharma is concerned, he has raised objections; firstly

to the letter by which he was asked to get his DNA Test

conducted and secondly to the aspect relating to charge-

sheet issued to him for having illicit relations with petitioner

Dharma Rani and having procured a child from their

relationship and thus having acted unbecoming of an officer

and committed a misconduct within meaning of Rule 4 of the

Rajasthan Conduct Rules, 1971.

11. Similarly, the petitioner Dharma Rani has raised two

separate questions. Firstly, with regard to the factual aspect

of her having illicit relation with petitioner Mahesh Chand

Sharma and of having begotten a child from the said

relationship and secondly, the other aspect of the question

raised of parenthood of her son by her mentioning of a

particular person as her husband and the authority of the

State Government or its authorities to level allegations which

intrude upon her private life and also affects privacy of her

son.

12. The respondents have filed a reply and stated that

merely because the petitioner has undergone basic

vasectomy operation, it cannot be said that he has become

infertile and has supported their action of initiating

departmental enquiry.

13. Learned counsel for the petitioner has raised a larger

question before this Court during course of arguments with
(7 of 33) [CW-2067/1999]

regard to the jurisdiction and the authority available with the

State Government to initiate departmental proceedings in

regard to the allegations of having illicit relationship. Learned

counsel submits that in the present scenario and with the

changes in the society and the laws as laid down by the Apex

Court from time to time, right to privacy inherently also

means right to live with a person of his own choice and such

a private right relating to having sexual relationship with

another adult female or male, as the case may be, would not

come within the ambit of misconduct for the purpose of

departmental proceedings under the Conduct Rules of 1971.

14. Learned counsel submits that Rule 4 of the Conduct

Rules, 1971, which provides that leading an immoral life

being an improper and unbecoming conduct, is to be

interpreted differently. If an adult person is having sexual

relations with another woman apart from his wife, it cannot

be a subject matter for departmental proceedings for leading

an immoral life. The Constitutional morality cannot be

sacrificed at the alter of civil morality. A right to live with

dignity inherently means a right to have a choice of ones own

life and the sovereign cannot be allowed to affect the day to

day personal life of an individual. An individual may have a

particular relation with another independent of her job

requirements. While she may not be allowed to get married

again, her right to choose a partner for whom she has

affection, cannot be denied or controlled by State or its

authorities. Any rule which is understood in a manner to
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deprive her of the said right would impinge upon her right to

privacy and sovereignty over her body would amount to

violence her fundamental right under Article 27 of the

Constitution. While a Government servant may be under the

control of the Conduct Rules but the Conduct Rules cannot be

espoused to treat and hold a relationship between a man and

a woman who may not be husband and wife as leading an

immoral life therefore, the relations between the two

petitioners could not be a subject matter of enquiry under the

CCA Rules, 1958 nor their relationship can be said to come

within the ambit of misconduct in terms of Rule 4(4) of the

Conduct Rules of 1971, even if it is stated that the allegation

is true although the petitioners have denied the same.

15. Learned counsel has taken this Court to various

judgments passed by the Supreme Court and the

observations made therein which shall be referred to at the

relevant place in this judgment.

16. Per-contra, Mr. GS Gill, learned Additional Advocate

General, appearing for the respondent-State has vehemently

supported the action and submits that so far as service laws

are concerned, the State has an exclusive authority and

control on its employees. It is open for the State Government

to put restrictions on the Government servants which may

relate to various aspects of living in the society. Certain

actions are settled norms of immorality like drinking and

smoking in office premises and similarly of having illicit

relationship. The word “illicit relationship” has to be construed
(9 of 33) [CW-2067/1999]

to mean relationship of having sexual intercourse with

another person than her own spouse. Any action which

affects a civilized society norms laid down and known as

“Maryada”, mean leading an immoral life. He submits that

any conduct which creates conflict in society has to be

treated as immoral. India i.e. “Bharat” as a country, has a

long cultural background spreading over 5000 years. The

norms which an Indian society believes in are those which

have come to be accepted by experience of their forefathers

and ancestors. The Indians still believe in monogamy in the

society and when a person enters into second marriage, he

shall be treated to have committed a misconduct. Having

relationship, while his spouse is living, with another woman

cannot be treated as a illusory offence. While the courts have

declared Section 494 IPC as ultravires, the action of having

relations with another woman cannot be said to be proper

and has to be deprecated by the State. Once such an

information has been received relating to a Government

Servant of having illicit relationship, enquiry in this regard

can always be conducted so as to maintain clean environment

by the employer and there can be no exception to the same.

17. Mr. Gill, learned Additional Advocate General has also

taken this Court to the replica of the calligraphist version of

the Constitution of India wherein there is a photo lithography

on each part of the Constitution giving illustrations of the

culture of “Bharat”. The illustrations show the “Mohenjodaro”

period in Chapter-1, “Vedic” period showing scene from Vedic
(10 of 33) [CW-2067/1999]

Asram (Gurukul) in Chapter-2, epic period in Chapters 3 4

showing scenes from “Ramayana” (conquest of Lanka and

recovery of Sita by Rama) and “Mahabharata” (Srikrishna

propounding Gita to Arjuna); “Mahajanpada” and “Nanda”

period in Chapter-5 6 showing scene from “Buddha’s” life

and “Mahaveer’s” life. Chapter-7 illustrates “Mauryan” period

depicting spread of “Buddhism” by emperor “Ashoka” in India

and abroad and “Gupta” period in Chapter-8 depicting scenes

from “Gupta” art and its development in different phases.

Chapters 9 10 also illustrate “Gupta” period showing

scheme from “Vikramaditya’s” Court and the scenes depicting

one of the ancient Universities (Nalanda)”. Chapters 11, 12

and 13 are relating to the Medieval period showing scenes

from “Orrisan” Sculptures, Image of “Nataraja” and scenes

from “Mahabalipuram” Sculptures showing “Bhagirath’s”

penance and the descent of “Ganga”. Chapters 14 and 15

speak of “Muslim” period mentioning of portraits of “Akbar”

and “Mugal” architecture and portraits of “Shivaji” and “Guru

Govind Singh” respectively. Chapter 16 depicts British period

by showing portraits of “Tipu Sultan” and “Lakshmi Bai” and

the rise against the British conquest. Chapter 17 and 18

depict India’s Freedom Movement showing portraits of the

Father of the Nation Mahatma Gandhi, his Dandi March and

Bapuji, the Peace-Maker and his tour in the riot affected

areas of “Naokhali”. Chapter 19 mentions revolutionary

movement for the freedom taken up by “Netaji Subhash

Chandra Bose” and the other portraits trying to liberate
(11 of 33) [CW-2067/1999]

Mother India. Chapters 20, 21 and 22 depict the natural

features namely; scene of Himalaya, desert and ocean

respectively.

18. With the assistance of the above, learned Additional

Advocate General proceeds to argue that morality has

different connotation in different societies and different

countries. India as a nation follows the Constitutional will and

the aforesaid illustrations raised in each chapter depict the

rich cultural heritage of India which believed in a particular

concept of life and method of living. It is his submission that

in country like India, there is no room for allowing an

individual to enter into illicit relationship by having sexual

relations with persons other than his own spouse and

therefore, such actions, once they have come in knowledge of

the department of the employer, who are bound to follow the

constitutional goals, have to take departmental action and

also severely punish if proved. If no action is taken, it is

bound to create indiscipline and the image of the department

is also tarnished.

19. Learned Additional Advocate General further submits

that as per provisions of the Rajasthan Conduct Rules, 1971,

the petitioners can be said to be leading immoral life and

improper and unbecoming conduct of the petitioners was

sufficient for conducting departmental enquiry against them

in terms of the CCA Rules, 1958 and the charge-sheet issued

to the petitioners cannot be said to be in any manner illegal,

arbitrary or unjustified. Countering the contention of the
(12 of 33) [CW-2067/1999]

petitioners that it is only an inter-se relation between two of

them and the State would have no reason to intrude in the

private life of the petitioners, he submits that it would

amount to allowing indiscipline amongst the forces and

encourage persons to lead immoral life.

20. I have considered the submissions and the judgments

relied upon.

21. Having noted aforesaid, this Court deems it appropriate

to deal with the first argument of both the petitioners jointly

and the second argument raising the larger question jointly in

two parts as under:

22. Part First:- A letter was issued to the petitioner

Mahesh Chand Sharma on 30/01/1999 whereby he was

informed that in view of the enquiry being conducted on the

basis of a complaint made against him and petitioner Dharma

Rani, it is necessary that he alongwith Dharma Rani and the

child remain present on 08/02/1999 before the Additional

Superintendent of Police, Jaipur City (North) at 10.00 am so

that their DNA Test may be conducted. This Court finds that

such demand could not have been made by the concerned

police officer for the purpose of conduct investigation at his

own level. Neither he has an authority to get the DNA Test

conducted nor it can be said that there was a criminal case

registered against the petitioner Mahesh Chand Sharma. The

petitioner Mahesh Chand Sharma has nowhere admitted of

having relationship with petitioner Dharma Rani and has also

submitted of having got vasectomy operation conducted
(13 of 33) [CW-2067/1999]

upon him. It is also to be noticed that if DNA Test is

conducted relating to the child, it would amount to examining

the paternity of the child and in departmental proceedings

such a procedure cannot be allowed to be adopted as it would

be beyond the purview of the authorities since the child

cannot be said in any manner to be under the control of the

concerned departmental authorities.

22.1 As regards the DNA Test of petitioner Dharma Rani and

petitioner Mahesh Chand Sharma is concerned, such a course

was not available for the departmental authorities for

investigation on a private complaint. The Officer concerned

has exceeded its jurisdiction and powers in issuing such a

letter and the letter impugned is liable to be quashed and set

aside.

22.2 So far as the charge-sheet issued to the petitioners is

concerned, the same has to be examined firstly with

reference to the question whether such an allegation could be

levelled on a person when there is no complaint by his wife or

children with regard to such an act. Admittedly, since the wife

and children of the petitioner Mahesh Chand Sharma have

not made any complaint nor there is any such statement of

his spouse or any other family member, merely on the basis

of some complaint made by the residents of a particular

colony, the department ought not have proceeded to initiate

departmental proceedings. The preliminary enquiry

conducted could not have been conducted on the basis of

such complaint and it cannot be ruled out that such
(14 of 33) [CW-2067/1999]

complaints made by the individuals may be on account of

several other considerations as have been alleged by the

petitioner.

22.3 The departmental process cannot be started on the

basis of private complaint and the fishing enquiry conducted

on the said basis is held to be unjustified.

22.4 The aspect relating to illicit relationship or a relationship

of living of a man and woman like husband and wife, require

factual proof and on the basis of surmises and conjectures or

rumors, a presumption cannot be drawn that a lady is having

illicit relationship with a man. Witnesses tested on the

principle of strict poof alone can be looked into for arriving to

such conclusions. The departmental authorities on the basis

of the doctrine of factum valet cannot impugn a person for

such conduct and they should stay their hands to leave the

matters to be decided by appropriate court of law. The

conduct of the parties and the act that there is no allegation

from wife of petitioner Mahesh Chand Sharma and the fact

that he has already undergone vasectomy operation

conducted and had already put in complete period of service

with the Air Force and after having three children, making

allegations based on some private complaint of strangers

who had an axe to grind would be amounting to treading in

dark waters and trying to catch fish by hand.

22.5 So far as petitioner Dharma Rani is concerned, it is also

to be noted that the charge-sheet makes allegation of her not

giving the correct information about parentage of her son. It
(15 of 33) [CW-2067/1999]

suffices to state that she has an exclusive right of choice of

reproduction. In Suchita Srivastava Vs. UT of Chandigarh:

(2009) 9 SCC 1, the Court recognized this right as right to

procreate as well as to abstain from procreating holding that

a woman has a right to privacy, dignity and bodily integrity.

22.6 In Bhabani Prasad Jena Vs. Orissa State

Commission for Women: 2010(8) SCC 633, while

examining the right of husband for a direction for DNA Test of

a child, the Apex Court held as under:-

“21. In a matter where paternity of a child is in
issue before the court, the use of DNA is an
extremely delicate and sensitive aspect. One
view is that when modern science gives means of
ascertaining the paternity of a child, there should
not be any hesitation to use those means
whenever the occasion requires. The other view
is that the court must be reluctant in the use of
such scientific advances and tools which result in
invasion of right to privacy of an individual and
may not only be prejudicial to the rights of the
parties but may have devastating effect on the
child. Sometimes the result of such scientific test
may bastardise an innocent child even though his
mother and her spouse were living together
during the time of conception.”

22.7 In ABC Vs. State (NCT of Delhi): (2015) 10 SCC 1,

the Supreme Court recognized the right of an unmarried

mother not to disclose the paternity of the child and it would

amount to violate her fundamental right to privacy, if she is

compelled to disclose name and particulars of father of her

child.

(16 of 33) [CW-2067/1999]

22.8 Keeping in view thereof, the charges levelled against the

petitioner Dharma Rani, if enquired, would go contrary to the

aforesaid principles laid down by the Supreme Court and

would violate her fundamental rights.

23. Part Second:-The larger question raised in the present

writ petitions is as to whether Section 4 of the Rajasthan

Conduct Rules of 1971, which binds a Government servant

not to lead an immoral life, would include in its ambit a

consensual relationship entered between an adult man and

woman and whether for such an action, the employer, with

whom the individuals are working as employees, would be

authorized to initiate departmental action and whether such

an action having been taken by the department would

amount to breach of the right of privacy and right to live with

dignity.

23.1 What is an immoral life is a debatable question. The

standards of living in a society, as laid down by it for an

individual, is generally understood to be the concept of

morality. There are certain aspects of mankind which are

generally accepted as immoral and moral. For example,

helping others, keeping promises, living an honest life are

treated as virtues which are said to be moral while

committing acts of murder, rape, cheating, lying and

behaving in a manner different from others. Causing danger

or apprehension in mind of others, is generally considered as

acts of immorality. A person, who is upholding mutual
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relationships being trustworthy, local, respectful and

gratuitous, is said to be having high moral values by the

people who are surrounding him and in the society where he

is living. However, there may be circumstances where a

particular sect of people or a particular community or

residents of a particular area like tribals who may fix their

different norms of living and for them certain actions may not

be immoral.

23.2 Thus, polygamy is found to be ever common in Nepal.

Amongst tribals also, there is a concept of men having

several wives or even women living with single male. In

Rajasthan, there are certain communities who believe in

‘Nata’ marriage i.e. where a lady, after marriage, may leave

her husband and start living with another male with the

consent of her father. Similarly, there is also a concept of

keeping one’s ‘Bhabhi’ who has become a widow as a wife.

23.3 While generally, it is held that being faithful to one’s

spouse and not having relations with any other woman is one

of the concept of moral values, however, it has different

connotations in different societies. Thus, what is understood

to be leading a moral life in one particular society, may be

treated as leading an immoral life in another.

23.4 If we look at the Indian mythology, we find that Indian

Gods have had single wife and there are some Gods who

have had more than one wife like Lord Ganesh who is said to

have Ridhi and Siddhi as his life partners. Lord Indra is said

to have several concubines known as “Aphsaras”. Lord
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Krishna is said to have had 16000 “Ranis” but these are all

mythological concepts having no concrete bases as such but

the only aspect which can be understood is that of being

faithful to the spouse alone and is a concept understood in

relation to the new laws and norms laid down in the society.

23.5 In opposition to the aforesaid concept of mythology,

there is another thought process and that is in relation to the

individual’s right of choice. Under Section 494 IPC, marrying

again during lifetime of husband or wife is an offence. It is

one of the offence relating to marriage and is a non-

cognizable offence that is tried on the basis of a complaint

made by husband or wife as the case may be.

23.6 In an article by Amelie Rorty published in Journal Ethics

2012 on the subject of “Use and Abuse of Morality, she states

“Righteous and self-righteous people misappropriate the

claims and language of morality placing themselves in the

position of divinity, judging the world, praising and

condemning according to their lights. The second abuse of

morality is moral narcissism talking about purity of the heart.

The third abuse of morality is that of claiming the high

ground of justification or condemnation.”

23.7 The concept of illicit relation i.e. of a married man living

consensually with another woman or a woman living and

having sexual intercourse with a married man is taken from

the concept of adultery which was defined in Section 497 IPC.

While the Supreme Court has declared Section 497 as

ultravires in a case of Joseph Shine Vs. Union of India
(19 of 33) [CW-2067/1999]

[Writ Petition (Criminal) No.194 of 2017] (supra), the

concept of illicit relationship with regard to leading of an

immoral life has to be understood taking into consideration

the right of an individual to privacy.

24. With regard to right of privacy, this Court finds that

privacy has a very long history, it has its origins already in

the ancient societies. Even the Bible has some passages

where the violation of privacy appeared in its early form,

where shame and anger followed the intrusion into someone’s

private sphere. It is enough to think of Adam and Eve, who

started to cover their bodies with leaves in order to preserve

their privacy. From a legal point of view, the Code of

Hammurabi contained a paragraph against the intrusion into

someone’s home. The Roman law also regulated the same

question. The idea of privacy traditionally comes from the

difference between “private” and “public”, which distinction

comes from the natural need – as old as mankind – of the

individual to make a distinction between himself/herself and

the outer world. Of course the limits between private and

public differ according to the given era and society, which will

cause the on-going change throughout history of what people

consider private. Plato illustrates this phenomenon in his

dialogue ‘the Laws’, where the complete life of the individual

was determined by the state and its aims, there was no place

for individual freedom and autonomy. Thus the book

describes a very extreme state (which in totality was never

realised), some elements of it came true in ancient societies,
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and the life of the individual was strongly influenced by the

public interests. In the Medieval Age ‘Privacy’ did not exist as

a societal value in today’s sense, the individual existed as a

member of a community, so his/her private life was affected

by the constant “monitoring” conducted by other members.

The appearance of “real” privacy relates to the transformation

of these small communities: the appearance of cities. During

the 19th century the new changes in the economy and in the

society led to the transformation of the way people lived and

these new changes had had consequences for privacy too, as

physical and mental privacy were separated and started to

evolve in two different ways. Due to urbanization, the

population of cities started to grow and it led to the physical

loss of privacy as people in cities had to live in crowded

places. On the other hand, citizens could experience a new

“type” of privacy, as they ceased to live under them. They

recognized two phenomena that posed a threat to privacy:

technological development (namely instantaneous

photographs) and gossip, which became a trade in

newspapers. Considering these changes, they were the first

to demand the recognition of the right to privacy (which they

defined as “the right to be let alone”) as a separate and

general right, as a right which ensured protection against not

the violation of property rights, but the mere emotional

suffering. Warren and Brandeis defined an already existing

common law right as a stepping stone to the right to be let

alone, such as the right to determine to what extents the
(21 of 33) [CW-2067/1999]

thoughts, the sentiments and emotions of the individual shall

be communicated to others. The principle of this right was

the “inviolate personality”. The right to be let alone basically

ensured protection against the unwanted disclosure of private

facts, thoughts, emotions, etc.

25. The concept of privacy has to be looked into with

respect to two view points. Firstly, from the point of view of

an individual and secondly, from the point of view of the

society. In a given circumstance, the society might treat

privacy of an individual the way they allow him to remain

while the individual will have an idea of privacy in a manner

he feels society and its members must leave it for him. This

conflict continues.

26. There is another concept and that is of adultery. It is a

concept emerging from mutual faith which two partners living

in relationship with each other have. Here again, a female

may want to have relationship and have sexual enjoyment

with another person without having any personal shame or

mental constraint. However, another woman already in

relationship by way of marriage or otherwise may object her

partner of having sexual relationship of any kind with another

woman who wants him. Thus, for woman ‘a’, it is not an

adultery but for woman ‘b’ it is loss of faith if her partner has

also started having relationship with another woman and

woman may call it adultery and object. Thus, abiding

disapproval of infidelity by the wife or partner is an adultery

for that person.

(22 of 33) [CW-2067/1999]

27. It is true that in the Indian society, promiscuous

relationship or adulterous relationship is understood to mean

in the present circumstances as a relation created between a

male and a female person contrary to the norms laid down by

the society. It may be live in relationship without getting

married or it may be a relationship between a married man

and a married woman or an unmarried man with a married

woman and a married man and a unmarried woman. The

Indian society does not accept such affairs to come within the

definition of morality.

28. Interestingly, in one of the cases which came up before

the Supreme Court namely; Ministry of Finance and

another Vs. S.B. Ramesh: (1998) 3 SCC 227, wherein

allegation was of Mr. SB Ramesh, an Income Tax Officer

contracting second marriage with one K.R. Aruna while his

first wife Smt. Anusuya was alive an the first marriage was

subsisting and a charge-sheet was issued to him that he had

been living with K.R. Aruna and also had begotten children

from her and accordingly he had exhibited a conduct

unbecoming of a Government servant. He was compulsorily

retired in departmental proceedings. While setting aside the

findings and the departmental proceedings, the Tribunal

made certain observations which were quoted by the

Supreme Court as under:-

“Though it would be ideal if sexual relationship is
confined to legal wedlock, there is no law in our
country which makes sexual relationship of two
adult individuals of different sex, unlawful unless
the relationship is adulterous or promiscuous. If
(23 of 33) [CW-2067/1999]

a man and a woman are residing under the same
roof and if there is no law prohibiting such a
residence, what transpires between them is not a
concern of their employer. Such a life, if accepted
by the society at large, without any displeasure
or grudge, then it cannot be said that there is
any moral turpitude involved in their living. In
this case, there is no case that on account of the
applicant living with Smt. K.R. Aruna, his
reputation among the general public has been
lowered or that, the public has been looking
down on his conduct as immoral one. Therefore,
even if factually, the allegation that the applicant
who is already married to another woman is
living with Smt. K.R. Aruna is proved to be true,
we are of the considered view that, that alone
will not justify a finding that the applicant is
guilty of misconduct deserving departmental
action and punishment.”

29. In the aforesaid case of Ministry of Finance and

another Vs. S.B. Ramesh (supra), the Supreme Court,

while quoting as above, observed as under:-

“9. Immediately we prefer to record our total
disapproval of the above observations of the
Tribunal. We propose to deal with and rest our
decision on the merits with reference to the
findings of the Tribunal rendered on the basis of
the facts relating to the case.”

30. The law thereafter has progressed. In the case of

Joseph Shine Vs. Union of India [Writ Petition

(Criminal) No.194 of 2017], the Constitutional Bench of

the Supreme Court (Chandrachud, J.) vide its judgment dated

27/09/2018 held as under:-

“2. Law and society are intrinsically connected
and oppressive social values often find
expression in legal structures. The law influences
society as well but societal values are slow to
adapt to leads shown by the law. The law on
(24 of 33) [CW-2067/1999]

adultery cannot be construed in isolation. To fully
comprehend its nature and impact, every
legislative provision must be understood as a
‘discourse’ about social structuring. However, the
discourse of law is not homogenous. In the
context particularly of Section 497, it regards
individuals as ‘gendered citizens’. In doing so,
the law creates and ascribes gender roles based
on existing societal stereotypes. An
understanding of law as a ‘discourse’ would lead
to the recognition of the role of law in creating
‘gendered identities’

34. The decision in Shayara Bano, holds that
legislation or state action which is manifestly
arbitrary would have elements of caprice and
irrationality and would be characterized by the
lack of an adequately determining principle. An
“adequately determining principle” is a principle
which is in consonance with constitutional values.
With respect to criminal legislation, the principle
which determines the “act” that is criminalized as
well as the persons who may be held criminally
culpable, must be tested on the anvil of
constitutionality. The principle must not be
determined by majoritarian notions of morality
which are at odds with constitutional morality.
In Navtej Singh Johar v. Union of India,
(“Navtej”)119 Justice Indu Malhotra emphasized
the need for a “sound” or “rational principle”
underlying a criminal provision:

“…Section 377 insofar as it
criminalises consensual sexual acts
between adults in private, is not based
on any sound or rational principle…

Further, the phrase “carnal intercourse
against the order of nature” in
Section
377 as a determining principle in a
penal provision, is too open-ended,
giving way to the scope for misuse
against members of the LGBT
community.”

50. The right to privacy depends on the
exercise of autonomy and agency by individuals.
In situations where citizens are disabled from
(25 of 33) [CW-2067/1999]

exercising these essential attributes, Courts must
step in to ensure that dignity is realised in the
fullest sense. Familial structures cannot be
regarded as private spaces where constitutional
rights are violated. To grant immunity in
situations when rights of individuals are in siege,
is to obstruct the unfolding vision of the
Constitution.

The opinion delivered on behalf of four judges in
K.S. Puttaswamy v. Union of India has recognised
the dangers of the “use of privacy as a veneer for
patriarchal domination and abuse of women.” On
the delicate balance between the competing
interests of protecting privacy as well dignity of
women in the domestic sphere, the Court held:

“The challenge in this area is to
enable the state to take the violation
of the dignity of women in the
domestic sphere seriously while at the
same time protecting the privacy
entitlements of women grounded in
the identity of gender and liberty.”

31. Further, in the case of Navtej Singh Johar ors. Vs.

Union of India through Secretary Ministry of Law and

Justice [Writ Petition (Criminal) No.76 of 2016], the

then Chief Justice of India Mr. Dipak Misra held as under:-

253 (iii) Our Constitution is a living and
organic document capable of expansion with the
changing needs and demands of the society. The
Courts must commemorate that it is the
Constitution and its golden principles to which
they bear their foremost allegiance and they
must robe themselves with the armoury of
progressive and pragmatic interpretation to
combat the evils of inequality and injustice that
try to creep into the society. The role of the
Courts gains more importance when the rights
which are affected belong to a class of persons or
(26 of 33) [CW-2067/1999]

a minority group who have been deprived of even
their basic rights since time immemorial.
253 (iv) Constitutional morality embraces
within its sphere several virtues, foremost of
them being the espousal of a pluralistic and
inclusive society. The concept of constitutional
morality urges the organs of the State, including
the Judiciary, to preserve the heterogeneous
nature of the society and to curb any attempt by
the majority to usurp the rights and freedoms of
a smaller or minuscule section of the populace.
Constitutional morality cannot be martyred at the
altar of social morality and it is only
constitutional morality that can be allowed to
permeate into the Rule of Law. The veil of social
morality cannot be used to violate fundamental
rights of even a single individual, for the
foundation of constitutional morality rests upon
the recognition of diversity that pervades the
society.

32. In the case of K.S. Puttaswamy and another Vs.

Union of India and others: (2017)10 SCC 1, Dr.

Chandrachud, J. has spoken as under:-

“118. Life is precious in itself. But life is worth
living because of the freedoms which enable each
individual to live life as it should be lived. The
best decisions on how life should be lived are
entrusted to the individual. They are continuously
shaped by the social milieu in which individuals
exist. The duty of the state is to safeguard the
ability to take decisions-the autonomy of the
individual-and not to dictate those decisions.
‘Life’ within the meaning of
Article 21 is not
confined to the integrity of the physical body. The
right comprehends one’s being in its fullest
sense. That which facilitates the fulfilment of life
is as much within the protection of the guarantee
of life.

119. Life is precious in itself. But life is worth
living because of the freedoms which enable each
individual to live life as it should be lived. The
best decisions on how life should be lived are
(27 of 33) [CW-2067/1999]

entrusted to the individual. They are continuously
shaped by the social milieu in which individuals
exist. The duty of the state is to safeguard the
ability to take decisions-the autonomy of the
individual-and not to dictate those decisions.
‘Life’ within the meaning of
Article 21 is not
confined to the integrity of the physical body. The
right comprehends one’s being in its fullest
sense. That which facilitates the fulfilment of life
is as much within the protection of the guarantee
of life.”

33. Similar view has been also taken by nine Judges Bench

of the Supreme Court in the case of Navtej Singh Johar

ors. Vs. Union of India through Secretary Ministry of

Law and Justice (supra) holding as under:-

127. The fundamental idea of dignity is regarded
as an inseparable facet of human personality.
Dignity has been duly recognized as an important
aspect of the right to life under
Article 21 of the
Constitution. In the international sphere, the
right to live with dignity had been identified as a
human right way back in 1948 with the
introduction of the Universal Declaration of
Human Rights. The constitutional courts
54Human Rights Gay Rights by Michael Kirby,
Published in ‘Humane Rights’ in 2016 by Future
Leaders of our country have solemnly dealt with
the task of assuring and preserving the right to
dignity of each and every individual whenever
the occasion arises, for without the right to live
with dignity, all other fundamental rights may not
realise their complete meaning.

131. In Maneka Gandhi v. Union of India and
another56, Krishna Iyer, J. observed that life is a
terrestrial opportunity for unfolding personality
and when any aspect of
Article 21 is viewed in a
truncated manner, several other freedoms fade
out automatically. It has to be borne in mind that
dignity of all is a sacrosanct human right and
sans dignity, human life loses its substantial
meaning.

(28 of 33) [CW-2067/1999]

134. It is not only the duty of the State and the
Judiciary to protect this basic right to dignity, but
the collective at large also owes a responsibility
to respect one another’s dignity, for showing
respect for the dignity of another is a
constitutional duty. It is an expression of the
component of constitutional fraternity

34. Thus, keeping in view the observations of nine Judges

Bench of the Supreme Court in the case of K.S.

Puttaswamy and another Vs. Union of India and others

(supra) wherein it was stated that “The purpose of elevating

certain rights to the stature of guaranteed fundamental rights

is to insulate their exercise from the disdain of majorities,

whether legislative or popular. The guarantee of constitutional

rights does not depend upon their exercise being favourably

regarded by majoritarian opinion. The test of popular

acceptance does not furnish a valid basis to disregard rights

which are conferred with the sanctity of constitutional

protection. Discrete and insular minorities face grave dangers

of discrimination for the simple reason that their views,

beliefs or way of life does not accord with the ‘mainstream’.

Yet in a democratic Constitution founded on the Rule of law,

their rights are as sacred as those conferred on other citizens

to protect their freedoms and liberties.”, the Constitutional

morality will impact upon any law which deprives an

individual to his entitlement to a full and equal citizenship and

the society or for that matter any employer cannot dictate

the expression of sexuality between the consented adults. A

relationship between a man and a woman is a private affair.

The employer has nothing to do with it.

(29 of 33) [CW-2067/1999]

35. In the words of the Supreme Court in the case of

Navtej Singh Johar ors. Vs. Union of India through

Secretary Ministry of Law and Justice (supra),

“Constitutional morality will supersede any culture or

tradition”. The Apex Court while dealing with the case under

Section 377 IPC in the aforesaid matter, held “Section 377 is

founded on moral notions which are an anathema to a

constitutional order in which liberty must trump over

stereotypes and prevail over the mainstreaming of culture.

Our Constitution, above all, is an essay in the acceptance of

diversity. It is founded on a vision of an inclusive society

which accommodates plural ways of life.”

36. Having noted above, this Court finds that the

photolithography on each part of the Constitution as shown in

the calligraphist version of the Constitution of India conveys

another meaning and not what Mr. GS Gill, Additional

Advocate General has sought this Court to understand. From

Chapter-1 to Chapter-22, the illustrations depicted are from

different periods starting from ‘Mohan Jodro’ period and

ending upto the British period and the struggle for

independence and the struggle of the Father of Nation for

removal of casteism and to achieve an egalitarian society

having equality as a concept permeating in all works of life of

an individual. Thus, it depicts how a society continues to

strive to achieve a better status and in the process, the

concepts of the cultural norms of the society have to change.

(30 of 33) [CW-2067/1999]

The pursuit is always towards the betterment and

independent rights of an individual.

37. Having said so, it would also be appropriate to deal with

the submissions of learned Additional Advocate General

appearing for the respondent-State. While it is true that the

Constitution of India depicts the history of India i.e. ‘Bharat’,

however, as held by the Supreme Court, as noted above in

foregoing paras, the evolution of a human mind is a

continuous process. With the change of times, the concept of

morality has to be understood according to change of the

society and the concept which an individual citizen may be

holding 100 years back, would not be the same with the

progression of he human development. The law makers have

to keep pace with the advancement of the society and the

interpretation has to be done accordingly.

38. The view expressed by the Apex Court would equally be

applicable where the question of relationship, between a man

and a woman is to be examined. The norms of moralities of

the society cannot supersede the right of privacy and right of

choice of relationship of an individual and no person can be

punished by his employer for such behaviour or relationship.

39. The Apex Court in the case of Navtej Singh Johar

ors. Vs. Union of India through Secretary Ministry of

Law and Justice (supra), has further held as under:-

“151.The choice of a partner, the desire for
personal intimacy and the yearning to find love
and fulfilment in human relationships have a
universal appeal, straddling age and time. In
(31 of 33) [CW-2067/1999]

protecting consensual intimacies, the
Constitution adopts a simple principle: the state
has no business to intrude into these personal
matters. Nor can societal notions of
heteronormativity regulate constitutional liberties
based on sexual orientation.”

40. Thus, this Court cannot deny an individual to have

sovereignty over his/her body and in view of the observations

made by Justice Krishna Iyer in the case of Maneka Gandhi

Vs. Union of India and another: 1978(1) SCC 248 that

“life is a terrestrial opportunity for upholding personality”, an

individual employee, only because of having accepted to work

under the State Government, cannot be deprived of his

dignity.

41. The right to live under Article 21 of the Constitution of

India also means a right to live with dignity which also means

right of choice and right of privacy.

42. In Navtej Singh Johar ors. Vs. Union of India

through Secretary Ministry of Law and Justice (supra),

the then Chief Justice of India Dipak Misra and Justice A.M.

Khanwilkar have held as under:-

“132.Dignity is that component of one’s being
without which sustenance of his/her being to the
fullest or completest is inconceivable. In the
theatre of life, without possession of the attribute
of identity with dignity, the entity may be allowed
entry to the centre stage but would be
characterized as a spineless entity or, for that
matter, projected as a ruling king without the
sceptre. The purpose of saying so is that the
identity of every individual attains the quality of
an ―individual being‖ only if he/she has the
dignity. Dignity while expressive of choice is
averse to creation of any dent. When biological
(32 of 33) [CW-2067/1999]

expression, be it an orientation or optional
expression of choice, is faced with impediment,
albeit through any imposition of law, the
individual’s natural and constitutional right is
dented. Such a situation urges the conscience of
the final constitutional arbiter to 56 (1978) 1 SCC
248 demolish the obstruction and remove the
impediment so as to allow the full blossoming of
the natural and constitutional rights of
individuals. This is the essence of dignity and we
say, without any inhibition, that it is our
constitutional duty to allow the individual to
behave and conduct himself/herself as he/she
desires and allow him/her to express
himself/herself, of course, with the consent of the
other. That is the right to choose without fear. It
has to be ingrained as a necessary pre-requisite
that consent is the real fulcrum of any sexual
relationship.”

43. Thus, this Court feels that a human dignity attaches to

itself also a right of concept of autonomy and also a right to

take ones own decisions for himself or herself relating to

his/her body and choices of his/per partner for whom he or

she wishes to live or have sexual intercourse. These choices

and selections cannot be a subject matter of departmental

proceedings and no employer can be allowed to do moral

policing on its employees which go beyond the domain of his

public life.

44. In view of the above discussions and observations, this

Court is of the opinion that an act of relationship entered by

an individual with another female or male as the case may be

while is/her spouse is alive would be an act of amounting to

adultery and would be considered as an immoral act so far as

the Indian society is concerned. It is not to be appreciated.

The same would, however, not be a ground for initiating
(33 of 33) [CW-2067/1999]

departmental proceedings by the employer and it be left best

for the person who may be affected individually to take

remedy and proceed against him/her in civil law or for

initiating divorce proceedings as the case may be.

45. Thus, this Court concludes that the respondents had no

authority to issue letter dated 30/01/1999 directing the

petitioners to undergo DNA Test alongwith child of Dharma

Rani and the action of suspending the petitioners and issuing

subsequently memorandum dated 16/12/2000 under Rule 16

of the Rajasthan Civil Services (Classification, Control

Appeal) Rules, 1958 is found to be illegal and unjustified and

the same is quashed and set aside and further, it is held that

the State Government shall not initiate departmental

proceedings on the basis of a complaint of any person against

a Government servant alleging therein of the said

Government servant having extra-marital relationship with

another man or woman whether married or unmarried.

46. Consequently, both the writ petitions are allowed with

all consequential benefits and it is held that the petitioner

Mahesh Chand Sharma, who has attained superannuation

during pendency of the writ petition shall be entitled to all

retiral and post retiral benefits and similarly, the petitioner

Dharma Rani shall also be entitled for all the consequential

benefits.

(SANJEEV PRAKASH SHARMA),J

Raghu

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