[Breaking] "Right To Choose A Partner Of Choice A Fundamental Right": Allahabad High Court Says The Judgments Which Held "Conversion For The Purpose Of Marriage Only" Not Good Law

In an important ruling, 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 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. The Background of the CaseA 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.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 StateThe 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.To drive home their point, they relied on the judgments in Noor Jahan and Priyanshi.Court's observation regarding the age of PriyankaThe 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 marriageThe 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."Relying on the apex court's ruling in the Case of Shafin Jahan v. Asokan K.M (2018) 16 SCC 368, the Court said that "the Apex Court has consistently respected the liberty of an individual who has attained the age of majority."The Court also reiterated the Apex...

[Breaking] "Right To Choose A Partner Of Choice A Fundamental Right": Allahabad High Court Says The Judgments Which Held "Conversion For The Purpose Of Marriage Only" Not Good Law

Sparsh Upadhyay

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