*By Vedansh Gupta, 2nd Year Student at National law University Odisha
THE RIGHT TO LOVE: PAWAN KUMAR v. STATE OF HIMACHAL PRADESH, 2017
Citation- CDJ (2017) SC 510 (India)
Name of the Court- Supreme Court of India
Judges- Dipak Misra, A. M. Khanwilkar and Mohan M. Shantanagoudar
Theme- The Right to Love of a Woman
Subject- Criminal Law and Constitutional Law
Abstract: The case of Pawan Kumar v State of Himachal Pradesh which came in 2017 is one step further for women in their fight against injustices. It interpreted women’s right to life and personal liberty to the extent where one must respect their feelings of rejection regarding oneself.
Patriarchy is one of those evils of the society which does not let it proceed further towards development and selfless social bonding. It is due to the earlier prevalent patriarchy that today we can find various social, economical, political, and psychological differences between the status of men and women. Patriarchy is the reason for various injustices faced by women like domestic violence, teasing, threatening, harassment, and assaults.
However, the society is gradually changing and developing itself. Women no longer suffer silently, but are raising their voice against injustices in the society. Men have also started to react positively towards this change and even support them.
The Indian Supreme Court was set up in 1950 with the motive of promoting justice, liberty, equality, and fraternity in the country by protecting the fundamental rights of the citizens. The current case is also an example of the Supreme Court enjoying its jurisdiction and powers to help women secure their fundamental rights.
- Procedural History:
A young girl, named Shalu, eloped with the appellant-accused in the middle of her teens, in what she considered as love and youthful fixation for him by putting her trust completely in the appellant. But, eventually the appellant was charged by the girl’s family with kidnapping, inducing or abducting woman to compel her to marry and rape. However, Shalu stood as still as a rock, resolute to support him which led to his acquittal as she thought that she was also at fault in the whole incident.
However, after the acquittal, the appellant started to think that he had been wronged by Shalu as she had no right to reject his love and thus a series of tormenting began. Eve-teasing became a routine business for him and the girl thought of nothing else, but to end her life which was just full of harassment by the appellant. Eventually she committed suicide by putting kerosene on her body and setting herself ablaze.
But death did not come at an instant. The girl was rescued by her father who was working in the nearby field and he took her to a doctor who testified the dying declaration of the girl. Subsequently, the appellant was charged with abetment to suicide under section 306 of the Indian Penal Code, 1860. The trial court acquitted the appellant by an order dated 16 July, 2010, stating that they could not give due credence to the dying declaration of the girl as there was no certificate regarding her fitness at the point of time. However, the High Court of Himachal Pradesh thought otherwise and convicted the appellant under section 306 of the IPC by not giving any importance to the state of the victim at the time of stating her dying declaration.
The appellant thought that he had been wronged by the High Court and files an appeal in the Supreme Court hoping to reverse the order of the High Court and challenging its jurisdiction in changing the judgment given by the trial court.
- Case Analysis:
The issue in this case can be understood with the help of three questions of law which the judges thought to ponder upon:
Issue 1: Can a dying declaration be accepted as legible evidence in a court of law?
Holding: The trial court did not give credence to the dying declaration of the victim on the ground that the victim was not in a condition to write or voice her declaration as alleged in the said document owing to the fact that she suffered third-degree burns affecting 80% of her body. Also, the medical officer had not issued any certificate stating the mental health of the victim while giving her statement. The High Court, however, gave due credence to the dying declaration as given in Shivaji Sahabrao Bobade v. State of Maharashtra that the appellate court has the power to review the evidence on which the order of acquittal was based. While being cross examined, Dr. Sanjay accepts the facts that Shalu received 80% burn injuries and that he did not issue a certificate of mental health, but denies that the declaration was not given by her. The High Court concluded that it was evident from the handwriting that the girl was in extreme pain and was trembling while writing her statement. The court found its basis in Gulzari Lal v. State of Haryana that a dying declaration may remain valid even if no certificate showing mental fitness of the declarer has been issued.
Issue 2: Was the High Court correct in reversing the order of acquittal under its jurisdiction and changing that to conviction in exercise of its appellate jurisdiction?
Holding: The question was answered in positive by the apex court by stating that the prosecution has been able to establish the active role played by the appellant-accused in instigating the victim to commit suicide by citing sufficient evidences. The apex court also said that the High Court was right to take the dying declaration of the victim into account and declaring the accused as convict because in an appeal against acquittal, the High Court has full power to review all the evidences in its entirety and the order of acquittal should be overturned on those evidences. This view was also found in Sheo Swarup v. King Emperor and Nur Mohammad v. Emperor. Also, as given in State of Karnataka v. K. Gopalakrishna, the appellate court can set aside an order of acquittal if the lower court was not correct in interpreting the evidence due to ignorance or misreading of records and does not base its judgment on the said evidence.
Issue 3: Did the acts of the accused amount to Abetment under section 107 IPC?
Holding: The accused used to threaten and tease the girl on a daily basis. The court gave the fact due consideration as the accused had created such a situation for the victim by his routine threats that the victim thought of no other way but to end her life to get herself free from this world of suffering. Each person reacts differently to the set of instances which lead to a painful situation. The suicidality pattern of each individual depends on his or her inner subjective experience of fear, mental pain and loss of self-respect. Thus, the young girl put an end her life due to the victim only. The Apex Court and the High Court interpreted it as the fault of the accused as his instigation led to the fate of the victim. The court said that the acts can be understood as a form of psychological harassment of the victim and thus, amount to abetment.
- The Right To Love:
A woman is a respected citizen of this country and is entitled to the same space and rights as a man or else it will be infringement of the right to equality under articles 14 and 15 of the Indian Constitution. Obnoxious acts, such as eve teasing and threatening, cannot interfere with a person’s right to life and dignity under article 21 of the constitution. She has the right to live a peaceful and dignified life and also to choose anyone as his better half. No man can compel her to love him. A woman has the freedom and liberty to love the person she wants to without any restrictions or compulsion from anyone.
The court said that it is the law that should prevail and not the antique concepts of male chauvinism and patriarchy. There is no place for such concepts in the society and men should keep their ego aside in matters like love. The judges said that egoism should bow down before the law and let the law provide justice to each strata and section of the society.
The Judgment came out on 28th April, 2017. Consequently, the appeal, being devoid of any merit, stood dismissed in the court of law.
The judgment came as a great relief to the women in our society who suddenly felt their dignity going high. The case of Pawan Kumar v State of Himachal Pradesh is indeed one such milestone which helped women to extend the scope of article 21 of the Indian Constitution by interpreting it in such a way so that they can have an immensely valuable right reserved for them- the Right to Love or Not Love Someone.