Lucknow:
A first information report (FIR) against a Muslim man from Uttar Pradesh’s Kushinagar – filed by the parents of his wife who converted to Islam last year to marry him – has been cancelled by the Allahabad High Court. “Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals,” the two-judge bench observed.
“We do not see Priyanka Kharwar and Salamat Ansari as Hindu and Muslim, rather as two grown-up individuals who – out of their own free will and choice – are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India,” the court said.
“Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty,” reads the order.
The judgement comes amid discussion for tough law in UP, Madhya Pradesh and Haryana over “Love jihad”, a pejorative used by right-wing groups to target relationships between Muslim men and Hindu women, which, they say, is a ruse to forcibly convert the women.
In the 14-page order passed on November 11, Judges Vivek Agarwal and Pankaj Naqvi made strong observations on the two previous orders by different judges in the same court in similar cases.
One of them was a writ petition in 2014 filed by five couples, seeking protection after interfaith marriages; the petition was dismissed. In another case, a single-judge bench in September refused to interfere in a petition by a couple as they sought protection three months after their marriage. The judge cited a Supreme Court order to say – “Religious conversion – just for the purpose of marriage – is not acceptable”.
“None of these judgments dealt with the issue of life and liberty of two mature individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. We hold the judgments in Noor Jahan (2014) and Priyanshi (September 2020) as not laying good law,” the High Court judges said in their November 11 order.
In the present case, the Allahabad High Court was deciding a writ petition filed by Salamat Ansari, a resident of east UP’s Kushinagar, and his wife Priyanka Kharwar, who had converted to Islam and changed her name to ‘Alia’ just before their wedding in August 2019.
The FIR in the case, filed by the woman’s parents the same month, listed offences under stringent sections like “kidnapping”, “abduction to compel a marriage” and the POCSO Act (Protection of Children from Sexual Offences Act). The parents of the woman had alleged that she was a minor at the time of marriage.
Challenging the FIR, the couple alleged the case was filed by the woman’s parents “prompted by malice and mischief only with a view to bring an end to martial ties, and that no offences are made out.”
In response, the lawyers for the UP government and the woman’s parents “vehemently opposed the submissions on the premise that conversion per se for contracting a marriage is prohibited,” adding that “marriage has no sanctity in law, thus this Court should not exercise its extra-ordinary jurisdiction in favour of such a couple.”
After establishing that the woman was an adult at the time of marriage, the two-judge bench made a host of observations to uphold “life and liberty”.
Invoking the constitution, the judges observed: “We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even state can have objection to relationship of two major individuals who out of their own free will are living together. Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India.
“While cancelling the FIR, the court also clarified they were not commenting on the “the validity of alleged marriage/ conversion,” and said they were cancelling the case “on the ground that no offences are made out, as discussed above, as also the fact that two grown up individuals are before us, living together for over a year of their own free will and choice.”
