Right to live with a person of choice, irrespective of religion, is intrinsic to right to life and personal liberty

Salamat Ansari Vs State of UP

Allahabad HC

11/11/2020

Crl. Mis. Writ Petition No- 11367 of 2020

About/from the judgment:

The High Court has ruled that its previous decisions stating that religious conversion per se for contracting a marriage was prohibited and said marriage has no sanctity in law are incorrect and did not lay down good law.

 

Rather, the right to live with a person of one's choice is intrinsic to the right to life and personal liberty irrespective of religion, the court held.

 

A Bench 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 now declared as "not laying good law", the 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."

 

Pertinently, the judges emphasised further:

 

"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. 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 made the above observations while hearing a petition concerning a Hindu woman and a Muslim man who had entered into a Muslim marriage. The court recorded the couple's submissions that they had entered into a Muslim marriage voluntarily and had been living together peacefully as husband and wife for a year.

 

An FIR was lodged 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.

 

The court was urged to quash the FIR and protect the petitioners from arrest on the ground that the case was motivated by malice and mischief and initiated only with a view to bring an end to the martial ties.

 

It was further submitted that no offences were made out as the couple had attained the age of majority and thus was competent to contract a marriage.

 

Additional Government Advocates appearing for the complainant, relied on the High Court's earlier judgments in Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of UP and ors and its recent reiteration in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another to contend that conversion per se for contracting a marriage is prohibited.

 

Commenting on the judgement in Noor Jahan's case, the Bench opined that although the woman, in that case, could not authenticate their alleged conversion, as they were unable to show the knowledge regarding the basic tenets of Islam, the writ court went against Constitutional principles to hold that the marriage was illegal.

 

The High Court went on to quash the FIR in this case primarily on the ground that no offences were made out. The Bench relied on the fact that two grown-up individuals were before it living together for over a year of their own free will and choice.

 

The Bench took note of the high school certificates of the couple to deduce that they had attained the age of majority. Since that was not in dispute, the alleged offences could not be made out as the victim had left her home on her own volition in order to live with her husband.

 

"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 Court said.

 

Referring to certain observations made by the Supreme Court in connection with "honour killings", the High Court added that the said principle would apply in the present context as well, where a relationship of two matured individuals was sought to be jeopardized at the whim and caprice of a parent.

 

While dealing with the contention of the informant-father that he be afforded visiting rights to meet his daughter, the court held that once the daughter had attained majority, it was her choice, as to whom she would like to meet.

 

"We, however expect the daughter to extend all due courtsey and respect to her family", the Bench added.

 

With these observations, the High Court went on to allow the writ petition and quashed the challenged FIR as well as all consequential proceedings.

Read the Judgment

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