Relationship Cannot Be Said To Have "Religious Angle" Merely Because Boy And Girl Are From Different Religions: Bombay High Court

A division bench of Justice Vibha Kankanwadi and Justice Abhay Waghwase granted anticipatory bail to a Muslim woman and her family accused of forcing a Hindu man to convert to Islam and held –

“It appears that now the colour has been tried to be given of Love-Jihad, but when love is accepted then there is less possibility of the person being trapped just for converting him into the other’s religion. The facts of the case i.e. contents of the FIR would show that there were many opportunities to the informant for severing his relationship with accused No.1 but he has not taken that step. Merely because the boy and girl are from different religion, it cannot have a religions angle. It can be a case of pure love for each other”.

The court allowed an appeal filed by the woman, her parents and her sister against rejection of anticipatory bail by the trial court. An FIR is registered against the appellants under Sections 386 (extortion by threat of death or grievous hurt), 364 (abducting in order to murder), 298 (uttering words, etc., with intent to wound religious feelings), 324 (voluntarily causing hurt by dangerous weapons or means), 504 (insult with intent to provoke breach of peace), 506 (punishment for criminal intimidation) of IPC and various sub-clauses of section 3(1) (atrocities) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

According to the man (informant), he was in a relationship with the woman. The appellant insisted that he should convert to Islam and marry her. He alleged that in March 2021, they abducted and forcibly had him circumcised at a hospital. He further alleged that the appellants extorted lakhs of rupees from him. The appellants with a local MLA, abused him in the name of caste and assaulted him at gunpoint in front of the MLA’s house, it was alleged.

The court noted that prima facie, the informant had a good relationship with the woman's parents. “When the initial relationship was good and the caste or the religion was not the barrier for them, then the question of raising the issue of caste or community or religion at a later point of time will not arise”, the court held.

The court observed that the information didn't severe his relationship with the woman despite alleged demand of conversion. Neither did he lodge any FIR after his alleged abduction, confinement, and forcible circumcision. The court found it surprising that even after all this he gave money to the woman and did not cut ties with her.

Although he has claimed that his report was not recorded by the police despite repeated attempts, he did not file private complaint with the appropriate court, the court observed.

According to the informant, the offence took place between March 1, 2018 to August 20, 2022. Lodging the FIR at Kranti Chowk Police Station on December 2, 2022, is an inordinate delay which affects the story and may diminish its importance, the court said.

The court further observed, “when the base for the relationship was the love affair, there was no barrier of caste or religion and therefore, prima facie case under the Atrocities Act cannot be said to be made out.”

The court noted that the informant has been seeking action against the appellants since October 20, 2021 regarding the demands of religious conversion and filed a complaint before the Judicial Magistrate First Class when the Police Commissioner took no action. However, in this complaint he did not make any allegations regarding caste abuse, the court noted. The Judicial Magistrate refused to send the matter for investigation, however, the informant has not stated whether or not he challenged this decision, the court added.

The informant disputed an affidavit sworn by him stating that the dispute between him and the woman arose due to misunderstanding and has now been settled. However, the court considered it at the prima facie stage as it was duly notarized. Thus, the court said that prima facie no offence under the Atrocities Act is made out and therefore there is no bar under Section 18 or 18A of that Act to consider the application for anticipatory bail.

The court decided to give benefit of doubt to the appellants as the medical evidence did not support the FIR. “The police papers show that there is evidence of circumcision. However, the expert was unable to say as to whether the said circumcision was natural or was due to any surgical intervention. The expert was also unable to say as to whether it was done by any medical professional or in a traditional way of Islam by an unauthorized person. He was also unable to say as to when it would have been done”, the court observed.

Since the substantial part of the investigation is over, the charge sheet is about to be filed, and three of the appellants are women, the court stated that physical custody of the appellants is not necessary.

The court directed the father of the woman to attend the police station every Monday between 11:00 a.m. to 2:00 p.m. corporate with the investigation till the chargesheet is filed. The other three appellants being women were not asked to attend the police station but the Investigation Officer may call them during daytime if their presence is required.

Case no. – Criminal Appeal No. 988 of 2022

Citation: 2023 LiveLaw (Bom) 130

Case Title – Shaikh Sana Farheen Shahmir and Ors. v. State of Maharashtra and Ors.