The Madhya Pradesh High Court warned the police and the State against “moral policing” in a case of an interfaith couple where the wife had willingly converted to Islam and was detained illegally by her parents. The single bench of Justice Nandita Dubey cited the Constitution to hold that it “gives a right to every major citizen of this country to live her or his life as per her or his own wishes.”
The petitioner, Gulzar Khan filed the habeas corpus petition for his wife who he married legally and who willingly converted to Islam. Khan stated that his wife’s parents took her forcibly to Banaras and detained her there illegally.
The corpus or the petitioner’s 19-year-old wife told the court that she had willingly married the present petitioner and converted to Islam. She also made a categorical statement that she was never forced into conversion and whatever she has done was as per her own wishes. She further told the court that she was forcibly taken away by her parents and grandparents where she was beaten up and threatened constantly to give a statement against the petitioner. She expressed her wish to stay with the petitioner since she had willingly married him.
The State, one of the respondents in the case, raised an objection in view of section 3 of the Madhya Pradesh Freedom of Religion Act, 2021 whereby any marriage performed in contravention of the same is deemed null and void.
Section 3 of the Act states as follows:
(1) No person shall-
(a) convert or attempt to convert either directly or otherwise any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
(b) abet or conspire such conversion
(2) Any conversion in contravention of provision of this section shall be deemed null and void.
The court however observed that the petitioner and his wife (corpus) are both major and that “no moral policing can be allowed in such matters where the two major persons are willing to stay together whether by way of marriage or in a live-in relationship, when the party to that arrangement is doing it willingly and not forced into it.”
The court further noted that the “Constitution gives a right to every major citizen of this country to live her or his life as per her or his own wishes.” The court rejected the state’s submission that the corpus should be sent to Nari Niketan. The court, thus, directed that the corpus be handed over to the petitioner, the husband, and directed the state and the police to ensure that both reach their home safely.
The court disposed of the petition and ordered thus,
“Under the circumstances, counsel for the State and the police authorities, who have produced the corpus are directed to handover the corpus to the petitioner and to see that the petitioner and the corpus reached their house safely. The police authorities are also directed to see that in future also the corpus and the petitioner are not threatened by the parents of the corpus.”
The High Court’s judgement may be read here:
Madras HC on individual’s right to convert
The Madras High Court recently upheld an individual’s right to change religion as per volition. The court held that the Constitution grants an individual the fundamental right to freedom of conscience if they want to change their religion by their own choice. And giving examples such as A.R. Rahman (born as Dileep Kumar), Yuvan Shankar Raja, a son of T. Rajendar having converted to Islam, the Court emphasised that this choice of change of religion cannot be objected to. However, the Court mentioned caution as it said that the same cannot be a group agenda, saying:
“But religious conversions cannot be a group agenda. Our Constitution speaks of composite culture. This character has to be maintained. The clock of history can never be put back. But the status quo that obtains in the year 2022 as regards religious demographic profile may have to be maintained.”
CJP challenged MP Freedom of Religion Act
On February 17, 2021, a Supreme Court bench headed by then CJI SA Bobde admitted CJP’s amendment to its original petition to include the Madhya Pradesh Freedom of Religion Ordinance, 2020 and Himachal Pradesh Freedom of Religion Act, 2019. CJP’s original petition had challenged the anti-conversion laws of Uttar Pradesh and Uttarakhand to be ultra vires of the Constitution on which the top court had issued a notice to the respective States on January 6, 2021.
All four laws have been challenged on grounds that it is discriminatory, anti-women, and contravenes the right to privacy and personal liberty of citizens by criminalising interfaith unions. Thus, CJP has prayed for the Uttarakhand Freedom of Religion Act (2018), Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, Madhya Pradesh to Freedom of Religion Ordinance, 2020 and Himachal Pradesh Freedom of Religion Act, 2019 to be declared anti-Constitutional and struck down.
The plea has raised issues of privacy, extra-Constitutional powers to police and non-state actors, violation of the non-negotiable tenets of secularism, equality and non-discrimination. All four laws are inherently anti-women, discriminate against women, leaving them with no agency over their decisions and life and therefore bad in law and substance. CJP has also argued that such laws are premised on “conspiracy theories” and assume that all conversions are being illegally forced upon individuals who may have attained the age of majority, throttling their personal liberty guaranteed under Article 21 of the Constitution.
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