The Allahabad High Court on Monday struck down two earlier judgements, which held that religious conversion “just for the purpose of marriage” was unacceptable, saying that the right to live with a person of choice, irrespective of religion, is intrinsic to right to life and personal liberty.
The order by a division bench of Justices Vivek Agarwal and Pankaj Naqvi is significant as Uttar Pradesh Chief Minister Adityanath had referred to the judgement to propose a new law to criminalise “love jihad”.
The earlier order of the court said that conversion just for the purpose of marriage is unacceptable. Dismissing a plea by a newly married couple, Justice MC Tripathi said, "The first petitioner has converted her religion on June 29, 2020 and just after one month, they have solemnised their marriage on July 31, 2020, which clearly reveals to this court that the said conversion has taken place only for the purpose of marriage."
The couple had approached the court to direct police and the woman's father not to disturb their marital life. The girl, whose parents are Muslim, converted to Hinduism just a month before her marriage.
“We hold the judgements in Noor Jahan and Priyanshi as not laying as good law,” the High Court said on Monday, according to reports.
The Allahabad High Court held that the right to live with a person of one's choice is intrinsic to the right to life and personal liberty irrespective of religion, Bar and Bench reported.
The court ruled that if an alleged conversion was under clout, the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years.
Referring to the two earlier judgments, the Allahabad High Court said, "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."
"The Courts and 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," the court further observation.
"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. Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her fundamental right to life and personal liberty as it includes 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 High Court's observations came while hearing a petition filed by a Hindu woman and a Muslim man seeking quashing of an FIR by the woman's father 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.
"We do not see Priyanka Kharwar and Salamat Ansari 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 the life and liberty of an individual guaranteed under Article 21 of the Constitution of India," said the court.
The eralier passed in October referred to the case of Noor Jahan Begum in which the high court in 2014 held that conversion just for the purpose of marriage was unacceptable.
The petition was rejected by the Allahabad High Court in the case of Noor Jahan Begum praying to provide protection to the married couple as the girl was a Hindu in the case and married after converting to Islam.
In that case, the court had asked, "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?"
The court at that time answered the question in negative while relying on teachings of the Quran.
The recent HC order declared both the judgments as "not laying good law".