In an unprecedented decision on November 11, the Allahabad High Court has deemed a previous law as ‘bad’ which stated that religious conversion just for the sake of marriage was prohibited and such marriages had no sanctity in law.
A 2-Judge Bench of the Allahabad High Court, comprising of Justices Pankaj Naqvi and Vivek Agarwal, had made some critical observations about the legitimacy of inter-faith marriages and religious conversion for it while hearing the case of Salamat Ansari and Priyanka Kharwar (converted to Alia).
A First Information Report (FIR) was lodged against Ansari, Alia and two others under Indian Penal Code (IPC) Sections 363 (kidnapping), 366 (abduction to compel for marriage), 352 (assault), 506 (criminal intimidation) and Sections 7/8 of the POCSO (Protection of Children from Sexual Offences) Act, 2012.
The couple and two other petitioners had sought the quashing of the FIR, besides a direction from the Allahabad High Court preventing their arrest. They argued that the duo were adults and had mutually consented to the Nikkah (Islamic marriage) on August 19 last year. The petitioners stated that Priyanka had ‘renounced’ Hindusim and embraced Islam on her own accord. They claimed that the FIR was filed by Priyanka’s father with a malicious and mischievous motive to end their marriage, even though they have been living peacefully for a year together.
2014 Judgements in Priyanshi and Noor Jahan case ‘bad laws’, stated Allahabad High Court
Additional government advocate (AGA) and the informant’s counsel opposed the petition citing judgements in the Priyanshi and Noor Jahan cases, where the Allahabad High Court had upheld that conversion to Islam for the sole purpose of marriage, without any real change in belief, was neither bonafide nor valid. They argued the Court to exercise its ‘extra-ordinary jurisdiction’ in favour of the couple as marriage has no sanctity in law.
In the Noor Jahan case (2014), the Allahabad High Court observed that petitioner Noor Jahan Begum (converted from Anjali Sharma), who had married her Muslim husband and ‘renounced’ her religion to convert to Islam, was unable to show ‘basic knowledge’ about the tenets of Islam. The Court had ruled in that such a marriage is illegal, since it took place after the conversion. The same judgement was cited in the Priyanshi (converted from Km. Shamreen) case where a Muslim girl had married a Hindu husband and had converted to Hinduism, a month prior to her marriage.
The two-Judge Bench of the Allahabad High Court in the current case of Priyanka and Salamat Ansari stated, “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.”
It further added, “Once the alleged conversion was under cloud, the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years. To disregard the choice of a person who is of the age of the 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”
Ability to choose partner integral to personal liberty, reiterated Allahabad High Court
The Court stated, “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 added, “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 any objection to the relationship of two major individuals who out of their own free will are living together.”
The Court noted that Priyanka was not a juvenile and hence a case could not be made out under the POSCO Act. The Judges stated that charges of abduction cannot be made as the girl had left her home out of her own choice. The Allahabad High Court had also deemed the charges of assault and criminal intimidation as ‘exaggerated’ and ‘malafidely motivated.’ The Court had also ruled that the Supreme Court had observed in several cases the right to choose a partner is an integral part of Fundamental rights under Article 21 of the Constitution.
It further ruled, “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 the life and liberty of an individual guaranteed under Article 21 of the Constitution of India.”
Only recently, Allahabad HC had upheld the 2014 judgement when a Muslim woman had converted to Hinduism
The Allahabad High Court in October had dismissed a writ petition of an interfaith marriage couple who asked for police protection and for the court to intervene and direct their families to stop interfering in their married life. While hearing a case, a single-judge bench of Justice Mahesh Chandra Tripathi observed that religious conversion just for the sake of marriage is illegal. Saying so the court dismissed the plea made by the newly married couple.
The decision came after the Court noted that the girl was a Muslim by birth and she has converted her religion to Hinduism, just a month before the marriage was solemnized. This clearly reveals that the conversion has taken place only for the purpose of marriage, said Justice Mahesh Chandra Tripathi told the petitioner Priyanshi alias Samreen and her partner.
Referring to the case Noor Jahan Begum @Anjali Mishra & Anr. v. State of U.P. & Ors(2014), in which it was observed that conversion for the sole purpose of marriage could not be accepted, the court rejected the petition saying that it cannot be entertained under Article 226 of the Constitution of India.