The right to choose a partner irrespective of caste, creed or religion is intrinsic to the constitutional right to life and personal liberty, the Allahabad high court held, adding that two previous judgments that objected to religious conversion for the purpose of marriage didn’t lay down good law.
The decision by the two-judge bench, delivered on November 11 but made public on Monday, may pose a legal problem for the Uttar Pradesh government, which is planning a law to regulate interfaith relationships on the basis of the two previous judgments that were both delivered by single-judge benches.
The bench, comprising justices Pankaj Naqvi and Vivek Agarwal, was hearing a petition by a Muslim man and his wife, who converted from Hinduism to Islam, to quash a police complaint against them by the woman’s father. The petitioners contended they were both majors and competent to choose their life partners.
The court agreed with the petitioners, Salamat Ansari and Priyanka Kharwar alias Alia, both residents of Kushinagar district.
“An individual on attaining majority is statutorily conferred a 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,” observed the bench.
The judges held that any interference in a personal relationship would constitute a “serious encroachment” on the right to freedom of choice. “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 verdict said.
The judgment also contradicted two previous judgments – one delivered in 2014 and the other in 2020 – that said that religious conversion only for the sake of marriage was not valid under law.
“We hold the judgments in the Noor Jahan and Priyanshi (cases) as not laying good law. 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,” the two-judge bench held.
In the Noor Jahan case, the HC had dismissed a batch of writ petitions asking for protection of a married couple where the woman converted from Hinduism to Islam. In the Priyanshi case, a Muslim woman converted to marry a Hindu man, and the couple approached the court for police protection.
Shortly after the high court passed the judgment in the second case in October, Uttar Pradesh chief minister Yogi Adityanath announced that his government was planning a law to regulate “love jihad”, a term used by right-wing Hindu activists to describe relationships between Hindu woman and Muslim men.
These activists allege that Muslim men “lure” gullible women for conversion, though experts say adult men and women are free to convert for relationships, and the central government told Parliament in February that there was no definition of the term and no such cases were reported by agencies. Haryana, Madhya Pradesh and Karnataka, all ruled by the Bharatiya Janata Party (BJP), are also considering similar laws.
In the current case, the petitioners sought quashing of a first information report lodged on August 25, 2019 for alleged kidnapping, assault and other sections of the Indian Penal Code and under the Protection of Children from Sexual Offences Act. The petitioners said they were living together as a couple peacefully for one year and the FIR – filed by the woman’s father – was aimed at ending the marriage. Counsel for the woman’s father opposed the petition and cited the 2014 and 2020 judgments, arguing that conversion only for the sake of marriage is prohibited and such marriages had no sanctity in law.
The judges dismissed that argument. “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.”
“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,” it held.