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“Right To Choose A Partner Of Choice Is A Fundamental Right”: Allahabad High Court [READ JUDGMENT]

The judgment has become a distress against the UP government’s anti-conversion law also known as love jihad law

By: Malavika S. Menon, B.BA LL.B, Nehru Academy of Law

The bench of Justices Pankaj Naqvi and Vivek Agarwal held in the case of  Salmath Ansari & Others Vs. State of UP & Others that “Religious conversion just for the purpose of marriage is unacceptable” is not good law.

And the bench remarkably noted that the “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.”

Brief of the case:

The petitioners Salmath Ansari and his wife Priyanka Khawar now known as Alia filed a case seeking the quashing of the FIR as Case Crime No. 0199 of 2019 under sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act, Police Station Vishnupura, Kushinagar.

The FIR filed by the father of Priyanka @ Alia alleged that the couple is of the age of majority, competent to contract a marriage, performed Nikah on 19.08.2019 as per Muslim rites and rituals. Thereafter, Priyanka Kharwar renounced her Hindu identity and embraced Islam willingly with free consent.

The couple had been living happily together for almost a year peacefully until her father is prompted by malice and mischief only to bring an end to marital ties.

The state argued 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 favor of such a couple.” The state also relied on the judgments in the cases of Noor Jahan and Priyanshi.

Court’s Observation:

The Court pronounced that “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 State can have an objection to the relationship of two major individuals who out of their own free will are living together.”

In the judgment, it has been held that “We do not see Priyanka and Salmath 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 petition clarifies that as per the birth certificate of Priyanka in her school, she is of the age 21 and hence the contract is valid.

As about the previous judgments on which the state relied, the court pointed out that  “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.” 

While concluding the judgment by quashing the FIR the court remarked that “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.”The bench also noted that it is her choice to visit her parents or not but the court expressed that they, however, “expect the daughter to extend all due courtesy and respect to her family.”

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