New Delhi: In an important judgment with negative political implications for the Adityanath government’s desire to criminalise inter-faith marriages involving conversions, the Allahabad high court has denounced a previous single-judge bench decision that religious conversions only for the sake of marriage are unacceptable, saying that decision was “bad in law”.
That judgment, the division bench of the Allahabad high court said on November 11, does not take into account the right to life and personal liberty of mature adults. The bench was referring to the 2014 decision in Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and Others, which was followed in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another in September 2020.
Adityanath had referred to the September 2020 judgment at an election rally in Jaunpur recently, and said, “This is why our government has decided that we will act to stop love jihad in a firm way.”
Apart from the fact that the UP Police has found no evidence of what Adityanath calls ‘love jihad’ in the state, the legal crutch the chief minister was leaning on has now been taken away by the high court.
“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,” a bench of Justices Pankaj Naqvi and Vivek Agarwal 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 the state can have an objection to the relationship of two major individuals who out of their own free will are living together,” the judges also said.
The bench was ruling on a petition filed by Salamat Ansari, who married Priyanka Kharwar/Alia. Priyanka’s father had filed an FIR against Salamat, saying that his daughter had been kidnapped and had abandoned Hinduism to marry Salamat.
The bench said that it did not see Salamat and Priyanka as a Muslim and a Hindu, but as two adults who had chosen to spend their lives together of their own free will, and said they were happy together. The FIR filed by Priyanka’s father must be quashed, the court said, as it appears to have been filed “prompted by malice and mischief only with a view to bring an end to marital ties”, LiveLaw reported. The bench said:
“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 Courts and the Constitutional Courts, in particular, are enjoined to uphold 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.”
The bench also noted that Priyanka’s age was not under dispute, and she was an adult who could legally make her own decisions, including choosing to convert to Islam.
The state had argued in favour of the woman’s father, saying that precedent held conversion only for the sake of marriage was not acceptable. The ASG relied on the two judgments mentioned above to make this case. The court, however, said that these two judgments were “bad in law” – and that the Supreme Court had made it clear that the personal liberty of all adults must be respected.
The Allahabad high court cited the Supreme Court’s judgment in Shafin Jahan v. Asokan K.M (2018) (on the conversion and subsequent marriage of Hadiya). “The apex court has consistently respected the liberty of an individual who has attained the age of majority,” the high court said.
The Allahabad high court’s decision is particularly significant because Uttar Pradesh chief minister Yogi Adityanath had used the court’s earlier ruling to justify his proposed anti-‘love jihad’ law. “The court’s verdict will be followed and the honour and dignity of women will be ensured,” he had said,
Hindutva groups, including Bharatiya Janata Party leaders like Adityanath, have recently raised the pitch against what they call ‘love jihad’ – or Hindu woman being “forced” or “coerced” to convert to marry Muslim men, with the ultimate goal of making Hindus a minority in India. It is a different matter that there is no evidence at all that any such conspiracy exists. As The Wire reported, a recent UP police probe found that most cases being called ‘love jihad’ were in fact consensual relationships between two adults – of the same kind the Allahabad high court has validated.