India / Right to choose partner intrinsic to right to life: Allahabad HC

Allahabad: In a significant judgment, the Allahabad High Court has reiterated that a person’s right to live with people of their choice, irrespective of religion, is intrinsic to their right to life and personal liberty guaranteed by the Constitution.

A bench comprising Justices Pankaj Naqvi and Vivek Agarwal ruled that two of its earlier verdicts — which said that religious conversion solely for the purpose of a marriage was prohibited — are incorrect and do not lay down “good law”.

The judgment assumes significance as Uttar Pradesh Chief Minister Yogi Adityanath had cited the HC’s observations while announcing that he would bring in a law on “love jihad”.

In the verdict passed on 11 November, the court observed, “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.”

It also advocated against State interference in a relationship between two adults, noting, “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.”

It asserted that an adult’s decision to live with another adult of their choice is “strictly a right of an individual”, and that a breach of this right would amount to a breach of their “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”.

The high court also relied on the Supreme Court’s judgment in the Hadiya case, to observe that “the Apex Court has consistently respected the liberty of an individual who has attained the age of majority”.

The court was hearing a petition filed by a couple — Salamat Ansari and Priyanka Kharwar (now Alia) — who tied the knot on 19 August 2019 after Kharwar converted to Islam.

However, her father filed an FIR against Ansari, his mother and brother, under various provisions of the Indian Penal Code (IPC) including Sections 363 (kidnapping), 366 (kidnapping, abducting or inducing a woman to compel her marriage), 352 (assault) and 506 (criminal intimidation), along with provisions of the Protection of Children from Sexual Offences (POCSO) Act.

The couple had approached the court asserting that both Ansari and Alia are adults and have willingly tied the knot.

The two verdicts that aren’t ‘good law’

According to the judgment, the additional government advocate as well as the lawyer for Alia’s father had submitted that conversion just for marriage is prohibited. Among other things, they relied on two high court judgments — one passed in 2014 and another passed in September this year.

In the 2014 judgment, the court was hearing a batch of writ petitions in which married interfaith couples had sought protection. In all those cases, the girl had converted to Islam and then performed the Nikah.

The high court had however, opined that in each of those cases, the conversion was not bonafide or valid, while noting that the girls did not know about Islam and did not have any “real faith and belief in the unity of God and Mohamed to be prophet”.

The court’s September judgment had relied on this 2014 judgment to observe that “conversion just for the purpose of marriage is unacceptable”.

However, in the 11 November judgment now, the two-judge bench noted that the 2014 and the September verdicts did not lay the correct law.

While referring to the 2014 ruling, the court asserted that if the alleged conversion was under doubt, a constitutional court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years.

“…irrespective of the conversion being under clout, the mere fact that the couple was living together, the alleged relationship can very well be classified as a relationship in the nature of marriage,” it observed.

‘We do not see them as Hindu & Muslim’

The court noted that Alia was 21-year-old and said the fact that the petition is filed and supported her affidavit “goes to show that she is voluntarily living with Salamat Ansari as a married couple”.

Once this is established, the court said that the provisions of POCSO Act as well as the IPC would not apply, and the allegations “appear to be exaggerated and malafidely motivated with a view to implicate the family of petitioner no. 1 (Ansari)”.

The court, therefore, allowed the petition and quashed the FIR, while clarifying that it has not commented on the validity of the alleged marriage and the conversion.

“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 observed.

It also refused to consider the father’s request for “visiting rights to meet his daughter”, saying that once she has attained majority, “it is her choice, as to whom she would like to meet”.