The right to live with a person of his or her choice irrespective of religion is intrinsic to the right to life and liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of two individuals, the Allahabad High Court has noted.
The court made the observations while quashing an FIR against a Muslim man and his family from Kushinagar district by the father of his Hindu wife.
A Division Bench of Justices Pankaj Naqvi and Vivek Agarwal also stated that a recent single-judge order of the court dismissing a writ filed by an inter-faith married couple seeking police protection on grounds that the conversion just for the purpose of marriage was unacceptable, was not laying good law.
In the Kushinagar case, petitioner Salamat Ansari filed a writ seeking the quashing of an FIR against him under Sections 363, 366, 352 and 506 of the IPC and Section 7 and 8 of the Protection of Children from Sexual Offences (POCSO) Act.
Mr. Ansari submitted that the couple were adults and had performed nikah on September 19, 2019, as per Muslim rites and rituals. The girl, Priyanka Kharwar, renounced her Hindu identity and embraced Islam and the couple had been living together peacefully for the past one year.
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Mr. Ansari also said that the FIR was lodged at Vishnupura police station by his father-in-law out of “malice and mischief,” only with a view to bring an end to their marital ties.
Counsels for the government and the informant opposed the submissions on grounds that conversion just for contracting a marriage was prohibited and that such marriage had no sanctity in law. They cited a single-judge judgment in the 2014 case of Noor Jahan Begum alias Anjali Mishra and its recent reiteration in the Priyanshi alias Shamreen case on September 23. In both cases, the girls had converted before marriage.
The High Court quashed the FIR against Mr. Ansari and his family and stressed that the courts and the constitutional courts in particular were enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution.
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“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,” Justice Naqvi said.
“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 judge added.
Further noting that the decision to live with an individual of his or her choice is strictly a right of an individual, Justice Naqvi said that when this right was infringed, it would constitute a breach of his or her fundamental right to life and personal liberty as it included the 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 passed its observations on the Noor Jahan Begum case, in which several women who had converted to Islam before marriage had approached the court for relief.
“... No doubt the ladies in question could not authenticate their alleged conversion as they were unable to show the knowledge regarding the basic tenets of Islam, the writ court against the above background held that the alleged marriage was illegal as it was performed after a conversion which could not be justified in law...
“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,” the court said.
Justice Naqvi further stated that an individual, on attaining adulthood, was statutorily conferred a right to choose a partner, which, if denied, would not only affect his or her human right but also his or her right to life and personal liberty, guaranteed under Article 21 of the Constitution.
“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 court said.
The judgments in the Noor Jahan Begum and Priyanshi cases were not laying good law, the court observed.
Incidentally, while addressing an election rally for bypolls, Chief Minister Yogi Adityanath had recently cited the Priyanshi case judgment and announced that his government would bring in a law against ‘love jihad.’
