The Allahabad High Court recently (11th November) specifically observed 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.”
Importantly, the Bench of Justice Pankaj Naqvi and Justice Vivek Agarwal remarked,
“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 the state can have an objection to the relationship of two major individuals who out of their own free will are living together.”
While observing that the Judgment of Right to Choose a partner in Priyanshi @ Km. Shamren and others v. State of U.P. and Another [Writ C No. 14288 of 2020] followed the Judgment in Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others. [Writ C No. 57068 of 2014], 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,” the Court further ruled.
A Writ Petition was filed, seeking a direction for the respondent, not to arrest the petitioners (Salamat Ansari & 3 Others), with a further prayer for quashing the impugned F.I.R. under Sections 363, 366, 352, 506 I.P.C. and Section 7/8 POCSO Act, Police Station- Vishnupura, District Kushi Nagar.
Salamat Ansari (Husband) and Priyanka Kharwar @ Alia (Wife) along with two others moved the High Court seeking quashing of FIR (lodged by the father of petitioner no. 4/Priyanka Kharwar @ Alia) under Sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act.
They argued that the couple (Salamat Ansari & Priyanka Kharwar @ Alia) is of the age of majority, competent to contract a marriage, performed Nikah on 19.08.2019 as per muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam.
It was further submitted that the couple has been living together as husband and wife since last one year peacefully and happily and they have a Right to Choose a Partner.
It was finally submitted that the FIR lodged by the father of petitioner no. 4/Priyanka Kharwar @ Alia was prompted by malice and mischief only with a view to bring an end to martial ties, no offences are made out, FIR be quashed.
Arguments of the State
The AGA and the counsel for the informant vehemently opposed the submissions on the premise that conversion per se for contracting a marriage is prohibited, said marriage has no sanctity in law, thus this Court should not exercise its extra-ordinary jurisdiction in favour of such a couple.
Court’s observation regarding the age of Priyanka
The Court observed that Priyanka Kharwar @ Alia’s age is not in dispute as she is reported to be around 21 years, and so, petitioner nos. 1 to 3 cannot be made accused of committing an offence under Section 363 IPC 3 or 366 IPC as victim on her own left her home in order to live with Salamat Ansari.
Similarly, the Court held that once Priyanka Kharwar @ Alia is found not to be a juvenile, the offence under Seciton 7/8 POCSO Act is also not made out.
Further, the Court said that allegations relating to an offence under Section 352, 506 IPC qua petitioner no. 2 and 3 prima facie, in view of above background, appear to be exaggerated and malafidely motivated.
Court’s observations regarding their marriage
The Court, in its order, made some significant observations. The Court said,
“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 Courts and the Constitutional Courts, in particular, are enjoined to uphold life and liberty of an individual guaranteed under Article 21 of the Constitution of India.“
Further, the Court noted,
“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.”
Notably, the Court remarked,
“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 a 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.“
Court’s observation regarding the Cases of Noor Jahan and Priyanshi
In September 2020, in the case of Priyanshi, The single Bench referred to a 2014 judgment in Noor Jahan Begum @ Anjali Mishra & Anr. v. State of U.P. & Ors., in which it was observed that conversion just for the purpose of marriage is unacceptable.
In Noor Jahan Begum, the Allahabad High Court had dismissed a batch of Writ Petitions which were filed praying for protection as a married couple as they had tied the knot after the girls got their religion converted from Hindu to Islam and then performed the Nikah. The issue considered in the said case was “Whether conversion of religion of a Hindu girl at the instance of a Muslim boy, without any knowledge of Islam or faith and belief in Islam and merely for the purpose of Marriage (Nikah) is valid?“
The High Court in the instant matter, took into account the facts of the case of Noor Jahan (supra), who, along with her alleged husband approached had approached the Court in the year 2014, for claiming protection as it was alleged that she had embraced Islam after renouncing her Hindu identity to contract a Nikah with her Muslim husband.
Importantly, there were four more petitions filed by married couples, wherein the identity of a lady in each case was analogous to that of Noor Jahan.
In that case, the ladies in question could not authenticate their alleged conversion as they were unable to show the knowledge regarding the basic tenets of Islam, and so the Court held that the alleged marriage was illegal as it was performed after a conversion which could not be justified in law.
To this, the High Court said,
“Once the alleged conversion was under cloud, the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years. To disregard the choice of a person who is of the age of the majority would not only be antithetic to the freedom of choice of a grown up individual but would also be a threat to the concept of unity in diversity.”
Consequently, the Court held that the Judgments in Noor Jahan and Priyanshi as not laying good law.
Final order of the Court
The Court, in its order said,
“Before parting we wish to reiterate that we are quashing the FIR primarily on the ground that no offences are made out, as discussed above, as also the fact that two grown-up individuals are before us, living together for over a year of their own free will and choice.”
Further, the Court said that the ultimate contention on behalf of the informant was that he be afforded visiting rights to meet his daughter.
To this, the Court said,
“Once petitioner no. 4 has attained majority, then it is her choice, as to whom she would like to meet. We, however, expect the daughter to extend all due courtesy and respect to her family.”
In view of the above discussion, the writ petition succeeded and was allowed.
The F.I.R. dated 25.08.2019 registered as Case Crime No. 14 0199 of 2019, under Sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act, Police Station- Vishunpura, District Kushi Nagar as well as all consequential proceedings were thereby quashed.
It may be noted that a lawyer has approached the Supreme Court against the High Court judgment in Priyanshi case and the challenge is pending.