Upholding Love : In Last One Month, Allahabad High Court Grants Protection To Over 125 Inter-Faith/Caste Couples

A survey of the orders passed by the Allahabad High Court in the month of November shows that it has granted relief to over hundred couples of inter-faith or inter-caste marriages.

In orders passed in 117 cases last month, the High Court asked the Senior Superintendent of Police of the concerned district to act upon the complaints of the couples, who were facing threat to life and liberty from relatives on account of their marriage outside caste/religion. The writ petitions were disposed of by allowing the couples to approach the SSP and by directing the SSP to act as per law on the complaint after verifying facts relating to majority, marriage etc.

Many of these cases related to inter-faith marriages involving the conversion of one of the partners.

Also, in nearly 12 other cases, the High Court quashed the criminal cases slapped against the male partner alleging the offence of kidnapping under Section 366 of the Indian Penal Code. Among these were also cases involving religious conversion.

These interventions of the High Court are significant as they came amidst the communally surcharged debates around 'love-jihad' conspiracy theories. On October 31, the Chief Minister of Uttar Pradesh, Yogi Adityanath, had made a statement that his government will bring a law against 'love-jihad', a term used to discredit marriages between Muslim men and Hindu women as part of a conspiracy to cause the conversion of Hindu women. During his public statement, the Chief Minister referred to a single bench judgment of the Allahabad High Court in the case Priyanshi @ Kum Shamreen and another v State of UP which observed that religious conversion just for the sake of marriage was invalid.

Significantly, a few days later, a division bench of the High Court overruled the single bench verdicts which had disapproved religious conversions for the sake of marriage.

"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", the division bench comprising Justice Pankaj Naqvi and Justice Vivek Agarwal observed while holding the single bench judgments as not good in law.

The division bench said that the single bench decisions failed to deal with the "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".

"...neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together", the High Court stated.

Protection orders passed by the High Court

The observations in the orders passed by the single bench in the 117 cases disposed of in November are similar.

As a sample, the observations in the order passed by a bench of Justice Ashwani Kumar Mishra in the case Mizba Khan and another v State of Uttar Pradesh on November 26 can be referred to :

"Law is settled that it is the right of married couple to live peacefully without any interference in case they are major...

In view of the clear enunciation of law by the Hon'ble Apex Court in the above matter(Lata Singh Vs. State of U.P., AIR 2006 SC 2522), it is obligatory for the concerned authorities to ensure compliance of the above directions in view of Article 141 of the Constitution of India.

In case petitioners face any genuine threat to their life and liberty, or they are harassed, contrary to law laid down in Lata Singh (supra), it shall be open for them to approach the Senior Superintendent of Police of the District concerned and furnish necessary details in that regard, like proof of their majority, marriage and alleged harassment etc., who shall take all steps as may be required in law to ensure that petitioners' life and liberty are not interfered with"

The orders refer to the Supreme Court judgment in Lata Singh Vs. State of U.P., AIR 2006 SC 2522, which stated :

"This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law."

Quashing of kidnapping cases

In many cases on inter-caste/religion marriages, disgruntled family members lodge police complaints against the man involved in the relationship alleging that he had kidnapped the woman.

The High Court quashed at least 12 such FIRs under Section 366 of the Indian Penal Code last month after noting that the man and the woman had been living together as a couple after performing marriage. The orders were passed in the petitions jointly filed by the couple to quash the criminal cases.

In one such case, Vijendra and another v State of UP, a division bench comprising Justices Pankaj Naqvi and Vivek Agarwal observed:

"We are of the view that since petitioner no. 2 was a major (24 years) on the date of occurrence, on the allegations made in the FIR, she had voluntarily solemnized a marriage with petitioner no. 2 on 4.9.2020, no offence under Section 366 I.P.C is made out".

The order referred to Supreme Court precedents in Shefin Jahan v K M Ashokan(Hadiya case) ,Lata Singh v State of U.P etc.

The judgment quoted from an earlier decision of the Supreme Court in Soni Gerry v Gerry Douglas as :

"It needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation".

Last week, the UP Government promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which criminalizes religious conversion by marriage.

Former Supreme Court judge Justice Madan B Lokur criticized the Ordinance as "placing on the backseat the freedom of choice and dignity".

Also Read : UP Ordinance Criminalizing Religious Conversion By Marriage Is An Assault On Personal Liberty

Click here to read/download the order in Mizba Khan and another v State of Uttar Pradesh, Shabana and another v State of UP, Mahi @ Gulsan Khatoon v State of UP, Meera Yadav and another v State of UP etc (samples of 117 protection orders)

Click here to read/download the order in Vijendra and another v State of Uttar Pradesh and Smt.Ayesha Alias Nandini Rathi v State of Uttar Pradesh (a sample of orders quashing FIR u/s 366 IPC)