A division bench of the Allahabad High Court ruled that its decision wherein it was held that conversion of religion for the sole purpose to marry could not be said to be bonafide or valid was "not laying good law".
The division bench comprising of Justices Pankaj Naqvi and Vivek Agarwal referred to two key judgments passed by the Allahabad High Court in Noor Jahan (December 2014) and Priyanshi (September 23) wherein it was held that religious conversion for the sake of marriage was unacceptable and that such a marriage was not said to be bonafide or valid.
"Right to choose a partner irrespective of caste, creed or religion", is an inherent right under right to life and personal liberty, the high court had said. The high court's verdict on November 11, 2020 came on a plea filed by Salamat Ansari who sought to quash an FIR filed against him by his wife's father who is a Hindu.
The Priyanshi judgment referred to above had kicked off a storm bringing the alleged issue of 'love jihad' back in focus. Uttar Pradesh (UP) Chief Minister Yogi Adityanath had relied on this September 23, 2020 verdict to promise a strict law to combat "love jihad".
Adityanath, in the October election rallies held at Jaunpur and Deoria, said: "The Allahabad High Court has said that for marriages, changing religion isn't necessary. The government too has decided to check 'love jihad' with all its might." In line with this promise, the UP government on November 21 proposed a draft law seeking to criminalize "love jihad" with a jail term of up to five years.
"Love jihad", a colloquial term which is not officially defined under existing laws, refers to the alleged conspiracy by Muslim men who lure women into converting to Islam on the pretext of love or marriage. In the past two months, at least four other states—Assam, Karnataka, Haryana and Madhya Pradesh—have stated their intention to bringing in a law to stamp out "love jihad".
Also Read: Religious Conversion Solely For Marriage? UP Proposes Jail Term
Right to live with a person of one's choice a fundamental right
In its November 11 verdict, Justices Pankaj Naqvi and Vivek Agarwal observed that the "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."
Salamat and Priyanka Kharwar performed Nikah on August 19, 2019, as per Muslim rites and rituals, she renounced her Hindu identity and embraced Islam.
"Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. 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," the high court observed.
"We do not see Priyanka Kharwar and Salamat 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 high court said quashing the FIR.
"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…," the high court added.
The high court ruled that it was quashing the FIR "primarily on the ground that no offences are made out", 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".
FIR against Ansari's family exaggerated and malafide motivated
Kharwar's father had filed an FIR accusing Ansari of kidnapping his daughter for the purpose of marriage and other provisions of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
In a strongly-worded judgment, the division bench said that once it was determined that Priyanka—who changed her name to Alia after she converted to Islam, was not a minor and left her home on her own accord, then Ansari and his family could not be accused of kidnapping. Based on the facts of the case before them, allegations appear to be exaggerated and malafidely motivated with a view to implicate Ansari's family.
The high court further observed that the father's FIR against Ansari was "prompted by malice and mischief only with a view to bring an end to martial ties…".
The high court referred to the 2018 Supreme Court judgment in the Shafin Jahan case to point out how the Apex Court "has consistently respected the liberty of an individual who has attained the age of majority." Referring to another SC verdict in Shakti Vahini on 'honour killings' the court said, "We are conscious that above observations were made in connection with "honour killings" but we are of the firm view that the said principle would apply in the present context too where a relationship of two matured individuals is sought to be jeopardized at the whim and caprice of a parent."
Also Read: "Love Jihad": BJP States Rush to Bring in Law But Courts Offer Mixed Opinion
Even if conversion under clout, relationship still valid
Discussing the two verdicts which were in the eye of the proverbial storm, the division bench said its judgments in the Noor Jahan and Priyanshi did not deal "with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live" and as such was "not laying good law".
Noor Jahan and Priyanshi had both sought the court's protection from harassment by their families. IN the Noor Jahan case, where three other similar matters were also tagged, the division bench found that even though the ladies could not authenticate their alleged conversion, the single judge's decision to hold the alleged marriage illegal could not be justified in law.
The high court said that in the Noor Jahan and associated matters, even if the "alleged conversion was under clout, the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years."
"To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown-up individual but would also be a threat to the concept of unity in diversity," Justice Naqvi, who authored the verdict said.
An adult has the right to choose a partner, "which if denied would not only affect his/her human right but also his/her right to life and personal liberty…", the judgment further read. "We say so for the reason that irrespective of the conversion being under clout, the mere fact that the couple was living together, the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage, in view of the provisions of Protection of Women from Domestic Violence Act, 2005."
"The judgment in Priyanshi (supra) followed Noor Jahan (supra). None of these judgments dealt with the issue of life and liberty of two matured 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 and Priyanshi as not laying good law," the bench concluded.