Allahabad High Court Stays Arrest Of Man Booked Under UP Ordinance Against Religious Conversion For Marriage

A Division Bench comprising of Justices Pankaj Naqvi and Vivek Agarwal has asked the UP Police to not take any coercive action against the accused, Nadeem, until the next date of hearing. The Court said,

"Victim is admittedly an adult who understands her well being. She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship. "

The Court also observed that the issue of right to privacy has been held to depend on the exercise of autonomy and agency by individuals.

Further, the Bench has tagged Nadeem's plea, as it also challenges the vires of the ordinance, before a Chief Justice led division Bench which is already seized of the matter.

The Bench was hearing a criminal writ petition filed by Nadeem, who was booked by the UP Police on November 29, two days after the Ordinance was promulgated, on a complaint filed by one Akshay Kumar.

This is the first time that an affected party has approached the High Court against this ordinance.

Nadeem, represented by Senior Advocate SFA Naqvi, has submitted that the impugned ordinance is in conflict with the Court's latest pronouncement in Salamat Ansari & Ors. v. Union of India & Ors., whereby it was held that 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.

It may be noted that this judgment was passed by the same Division Bench of Justices Naqvi and Vivek Agarwal.

The Petitioner submitted that impugned ordinance is a fraud on the Constitution inasmuch as it is directly in confrontation with Article 19, 21, 25 and 26 contained therein. "By means of this ordinance an atmosphere of fear and terror is being created amongst the people having desirous to marry a person of another religion or cast, which in itself is direct infringement upon fundamental right guaranteed to a citizen of this country," Nadeem said in his plea.

He further pointed out that the ordinance is in direct conflict with a Central Act namely Special Marriage Act 1954, which defines degrees of prohibited relationship. He submitted,

"once prohibited degrees for marriages beyond religion and castes are defined then by impugned ordinance new prohibited degrees are created on religious grounds this amounts to creating a communal and divisive legislation which is not at all permissible in our constitutional scheme."

It may be noted at this juncture that the Chief Justice-led Bench has already issued notices on a batch of PILs challenging the ordinance and has fixed the case for hearing on January 7.

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Nadeem pointed out that the new law confers unbridled powers upon the State Police which is already abusing it. He said in his plea that within nine days of passing of the Ordinance, the UP Police registered five cases under it. However, two of these cases, lodged within 24 hours of each other, present a sharp contrast — and show how police have wielded the new law selectively.

The plea stated,

"In Bareilly the police did not entertain the complaint of a father that his daughter had married a Hindu man after conversion. Police said they went by the woman's testimony that she got married in September before the law came into force. But in Moradabad the police arrested and jailed a Muslim man under the anti-conversion law despite his wife saying that they got married in July. The man's brother was also arrested and jailed. In Bareilly, police said they dropped the woman back at her husband's home. In Moradabad, police said the woman has been lodged in a state protection home."

In this backdrop Nadeem submitted that the impugned ordinance is selectively aimed at Muslim boys marrying Hindu girls and not targeted at Hindu boys marrying Muslim girls.

Nadeem had also sought quashing of the FIR lodged against him under Sections 504 (Intentional insult with intent to provoke breach of the peace), 506 (criminal intimidation) and 120B (Criminal conspiracy) of IPC and Sections 3 and 5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020.

It was alleged in the FIR that Nadeem developed an illicit relation with the Complainant's wife with the purpose of converting her religion and was attempting to convert her by threat as well as by exerting undue pressure.

Nadeem has denied all the allegations and asserted that he is a poor labourer who had been falsely implicated in the case by the Complainant, merely to avoid payment of some dues which the Complainant owes to him.

He pointed out that initially, he was booked only under IPC and a bare perusal of the FIR would indicate that provisions under the Impugned Ordinance were "mischievously added" later on hand, by hand as the same is not computer type.

He has claimed that the Section 3 and 5 of the Impugned Ordinance were added with the purpose to "create religious disharmony" and give effect to the "oblique motives" with which the impugned ordinance was passed.