A division bench of the Allahabad High Court on Wednesday, 11 November, held that two previous orders by single judges of the court, which had said that conversion purely for the sake of marriage was illegal, were not good law.
“Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to the right to life and personal liberty,” the two-judge bench held, adding that “Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.”
The HC asserts that the matter of a religious conversion is irrelevant if both the parties are adults and in a consenting relationship. The right of two adults to stay together cannot be encroached upon by the state, the judges said, in stark contrast to the provisions of proposed ‘Love Jihad’ laws in various BJP-ruled states including Uttar Pradesh, which just approved an ordinance which declares marriages after a conversion without permission will be declared null and void.
“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.”Allahabad HC order dated 11 November
The order of the court comes at a crucial moment, when those previous high court orders were being cited by BJP leaders like UP CM Yogi Adityanath and Karnataka BJP leader CT Ravi to justify the need for laws to tackle ‘Love Jihad’, despite the flaws in those orders and the lack of legal basis for any such laws.
‘Earlier Verdicts Were Not Laying Good Law’: HC
The division bench of Justices Vivek Agarwal and Pankaj Naqvi held that the two previous orders – one passed in September, and the other in 2014 – as “not laying good law”.
The High Court observed, "None of these judgments dealt with the issue of life and liberty of two matured 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 and Priyanshi as not laying good law.”
In arriving at this conclusion, the judges referred to the Supreme Court’s judgments in the Hadiya case, the Shakti Vahini case (on honour killings) and of course the landmark right to privacy case.
From the Hadiya case, the judges cited the paragraphs on how once an individual is over 18 years of age, no restrictions could be imposed on their choice of where to reside or with whom they could stay or their choice of faith. “The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.”
From the Shakti Vahini case, they cited the paragraphs which note that the choice of an individual is an inextricable part of their dignity, and that “When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.”
Finally, from the right to privacy case, they emphasised the importance of personal choices about one’s life to the right to privacy, whether for personal intimacies, marriage, one’s home or sexual orientation. “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.”
‘Infringement of Article 21 Of the Constitution Of India’
As a result, the Allahabad High Court observed that the intervention of the courts into an individual’s personal choices is an infringement to Article 21 of the Constitution of India which includes right to freedom of choice and the right to live with dignity.
As a result, it quashed the FIR filed by the woman’s father in this case alleging offences under Sections 363, 366, 352 and 506 of the IPC (kidnapping, abduction for forcing a woman to marry etc.) and Section 7 and 8 of the Protection of Children from Sexual Offences (POCSO) Act.
The matter concerned a Muslim man and Hindu woman who were living together peacefully as husband and wife for over a year, and the conversion in question, was voluntary and not forced, the two had said.
The court remarked 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.”
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