On March 13 this year the Allahabad High Court Bench of Justice Mahesh Chandra Tripathi and Gajendra Kumar while hearing the petition for quashing the FIR registered against the interfaith couples noted that “We make it clear that the question in the present petition is not about the validity of marriage of two individuals…Rather, the issue is about the life and liberty of two individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live.” Thus, the court emphasised on the preponderance of Article 21 of the Constitution, guaranteeing liberty and dignity of an individual to make life choices, irrespective of religious considerations.
Notably, the FIR was registered at Bannadevi police station in Aligarh on December 5 last year, charging the petitioners under IPC Sections 379 (theft), 120-B (criminal conspiracy), 366 (kidnapping or inducing a woman to compel her marriage), and Section 3 and 5(1) of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021.
Interestingly, the FIR invokes Section 3 and 5 (1) of the anti-conversion law, which relates to prohibition of conversion from one religion to another by fraudulent means and the punishment for the same, respectively, despite the fact that in the present case the petitioner had not converted her religion. This further adds weight to the claims about excessive abuse of Uttar Pradesh (UP)’s draconian anti-conversion law for punishing consenting interfaith couples.
This state law is under a constitutional challenge in the Supreme Court of India. Citizens for Justice and Peace is the lead petitioner. In its first petition challenging the anti-conversion laws of Uttar Pradesh and Uttarakhand, the Supreme Court had issued notice in January 2021, Thereafter, CJP challenged Madhya Pradesh and Himachal Pradesh laws were also added in this challenge. An additional petition was thereafter filed after the Karnataka and Haryana laws were passed in 2022 and the amendment to the Gujarat law was also enacted. In January 2023, CJP filed an additional petition challenging the anti-conversion laws of Chhattisgarh, Gujarat, Haryana, Jharkhand and Karnataka. Hence the anti-conversion laws of nine BJP ruled states are presently under the challenge in the Supreme Court, in which CJP is the lead petitioner.
Facts of the case
The petitioner by the name of Deepanshi had married her Muslim partner (petitioner no.2) under the Special Marriage Act (SMA, 1954), and since leaving her natal home she had been living with him. After the FIR was registered against them, the couple moved to the Allahabad High Court requesting the court for a direction to be issued to police to not arrest them with regard to the charges filed in the FIR.
In its March 4, 2024 order, the Allahabad HC after hearing both the parties recorded that the petitioners are “major” and have married of their own “free will” under Special Marriage Act, and possesses a valid marriage registration certificate. The bench of Justice Mahesh Chandra Tripathi and Gajendra Kumar further observed that the statement of the petitioner was yet to be recorded under Section 164 of the CrPC, and directed the investigation officer to produce the petitioner before the Chief Judicial Magistrate, Prayagraj, to record her statement under Section 164. Importantly, the bench decided to take the woman’s statement from Prayagraj after the interfaith couple alleged threat to their lives in Aligarh. Directing the Chief Judicial Magistrate to send the statement in a sealed cover, it restrained the police from arresting the couple until next date of hearing and asked the parties to cooperate in the meantime.
When the bench re-convened on March 13, it analysed the statement of the woman petitioner, in which she alleged that her father had beaten her up, and accused the police of filing a false and concocted FIR, noting that none of them had changed their religion. The bench after taking note of her desire to stay with her husband, noted that “the offence as alleged against the petitioners is not made out as victim had left her home in order to live with the petitioner no.2.” It relied on the ratio of Salamat Ansari vs. State of UP, in which the division bench of Allahabad HC had held the right to choose a partner irrespective of creed or religion an integral part of the fundamental right under Article 21. Further accentuating the point, the court reiterating the same judgement noted that “an individual on attaining majority, is statutorily conferred with 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 guaranteed under Article 21 of the Constitution of India.”
Additionally, citing Gian Singh vs. State of Punjab, the bench justified the quashing of criminal proceeding in this case. Pertinently, Gian Singh judgement distinguishes between the categories of heinous crimes like rape and murder, and offences which are more of a private nature, like dowry, family disputes, and commercial issues.
The court finally quashed the FIR registered against the couples, pointing out that both the parties were major and the woman had left her home out of free will to live with her husband. It also noted that marriage had been solemnised and no conversion took place for the purpose of marriage.
This judgement assumes significance for the interfaith couples in UP as increasing number of false cases continue to be filed against them in the name of conversion and love jihad, especially after the implementation of UP’s anti conversion law.
The judgement may be read here:
Bumpy ride for interfaith couples at the Allahabad High Court?
While the present judgement has come as a relief to many interfaith couples, such jurisprudence has not been consistent at the Allahabad High Court. Before Salamat Ansari judgement was delivered, the court had on two previous occasions failed to protect the couples from the interference of the family, by holding that conversion by the girl in the respective case was void and invalid, as she did not know about the basic tenets of Islam nor did she show any faith in the aforementioned religion. Essentially, the court instead of granting protection to the couple, alleged that the conversion seems to have taken place for the sole purpose of marriage, and as such the request of the couple cannot be granted for protection.
Thus, in the case of Noor Jahan Begum @ Anjali Mishra vs. State of UP, the court went into the question of determining whether that conversion was valid or not, and finally determining that it was invalid, it declined to grant the protection to the couple, even though the couple had voluntarily asked for the police protection. The bench of Surya Prakash Kesarwani in the case had wondered, “Whether conversion of religion of a Hindu girl at the instance of a Muslim boy, without any knowledge of Islam or faith and belief in Islam and merely for the purpose of Marriage (Nikah) is valid?” Therefore, instead of determining the plea for what it was, i.e., a request for police protection, the court went into tangential terrain to determine who is real Muslim or practitioner of Islam, in order to verify whether the conversion was valid or not.
The judgement may be read here:
The same judgement was relied upon in the case of Priyanshi @ Km Shamreen vs. State of UP, in which the girl had converted from Islam to Hinduism just one month before her marriage, and the couple were requesting for a direction “not to interfere with their peaceful married life by adopting coercive measures.”
The order noted that “The Court has perused the record in question and found that the first petitioner has converted her religion on 29.6.2020 and just after one month, they have solemnized their marriage on 31.7.2020, which clearly reveals to this Court that the said conversion has taken place only for the purpose of marriage”. On the basis of this reasoning, the court refused to grant any direction and dismissed the petition.
The judgement may be read here:
This problematic understanding of the court in linking conversion with marriage has already been highlighted by us in the piece on the Allahabad High Court’s repeated refusal to granted police protection to interfaith couples.
However, the Allahabad High Court has also stood by interfaith couples in the past. Delivering a progressive verdict in the case of Salamat Ansari vs. State of UP in November 2020, the bench of Justice Vivek Agarwal and Pankaj Naqvi had observed that the judgements delivered in Noor Jahan and Priyanshi were “not laying good law.” As in the present case, the couple in Salamat Ansari had also requested that FIR registered against them under Sections 363, 366, 352, 506 of IPC and Section 7/8 of POCSO Act be quashed and no arrest takes place by the police. Significantly, in this case, the girl had even converted her religion, but that did not stop the bench from granting the relief to the petitioners, perhaps because then the UP’s anti-conversion law did not come into picture.
In Ansari case, the court relied on a number of Supreme Court judgements to grant the couple the requested relief and quashed the FIR.
The bench citing the precedents set in Shafin Jahan v. Asokan K.M, Lata Singh v State of U.P, Shakti Vahini Vs. Union of India, KS Puttaswamy vs Union of India, and NandaKumar vs. State of Kerala, noted in its order that “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 Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. 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. 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 judgment may be read here:
As a constitutional court, the Allahabad High Court had made it clear that no infringement of fundamental rights can be permitted, even by the State, especially in matters of personal liberty and right to live with a person of one’s choice.
Similarly, the present judgement quashing the FIR against Aligarh couple is an empowering verdict, and in line with progressive judicial precedents, effectively strengthening the constitutional protection granted to all citizens.
Related:
SC issues notice to 5 states in CJP’s renewed challenge to anti-conversion laws
CJP’s amended petition allowed, CJP also challenges ‘love jihad’ laws of 5 more states