Lucknow: A case filed against a Muslim man 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 court observed in a verdict that is significant in the middle of a fiery debate over “love jihad”.
“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,” said a two-judge bench.
Salamat Ansari, a resident of east UP’s Kushinagar, and Priyanka Kharwar married against her parents’ wishes in August last year. Priyanka converted to Islam and changed her name to “Alia” just before their wedding.
The same month, Priyanka’s parents filed an FIR or First Information Report against Salamat, accusing him of crimes like “kidnapping” and “abduction to compel a marriage”. They included the stringent POCSO Act (Protection of Children from Sexual Offences Act), claiming that their daughter was a minor when she married.
On November 11, the Allahabad High Court ruled on Salamat’s petition requesting that the FIR be cancelled.
“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,” the High Court said in the 14-page order, rejecting arguments by the UP government as well as the woman’s parents.
The judgement comes at a time BJP-ruled states like UP, Madhya Pradesh and Haryana have talked about bringing laws to stop “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.
Judges Vivek Agarwal and Pankaj Naqvi also 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.
Challenging the FIR, Salamat and Priyanka had alleged that it was “prompted by malice and mischief only with a view to bring an end to marital ties, and that no offences are made out.”
In response, the lawyers for the UP government and the woman’s parents argued that religious conversion to marry is banned and that “the marriage has no sanctity in law, so this court should not exercise its extraordinary 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.”
The court also clarified it was not commenting on the “the validity of alleged marriage/ conversion,” but was cancelling the case as no offences were proved and “two grown up individuals are before us, living together for over a year of their own free will and choice.”