Allahabad High Court: 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

[Allahabad High Court: 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]

Recently, the Allahabad High Court in a significant judgment had noted 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.”

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.”

Brief Facts of the Case

  • A writ petition was filed, seeking a writ of mandamus, directing the respondent (Salamat Ansari & 3 Others), not to arrest the petitioners, with a further prayer for quashing the impugned F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019, under Sections 363, 366, 352, 506 I.P.C. and Section 7/8 POCSO Act, Police Station- Vishnupura, District Kushi Nagar.
  • Salamat Ansari and Priyanka Kharwar @ Alia (Wife)along with two others have invoked the extraordinary jurisdiction of the Court for seeking quashing of an FIR dated 28.08.2019 as Case Crime No. 0199 of 2019 under Sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act.
  • They premised 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, after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife since last one year peacefully and happily. It is finally submitted that the FIR lodged by father of petitioner no. 4/Priyanka Kharwar @ Alia is 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 set forth by the State

  • Learned AGA and learned 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. They relied on a judgment of a Learned Single Judge in Writ C No. 57068 of 2014 (Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others) and its recent reiteration in Writ C No. 14288 of 2020 (Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another).
  • While observing the judgement in Noor Jahan’s case, the Bench opined in that case, the lady 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. Therefore, the Court ruled that the Judgments in Noor Jahan and Priyanshi as not laying good law.
  • Further commenting on 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 ruled 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.” Further, the Court added, “We hold the judgments in Noor Jahan and Priyanshi as not laying good law“.

Observation made by the Court

  • The Court noted 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. Also, the Court ruled 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 observed that allegations relating to an offence under Section 352, 506 IPC qua petitioner no. 2 and 3 prima facie, in view of above backgroundappear to be exaggerated and malafidely motivated.
  • The Court order to quash 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.

The Court in the present case had made some significant observations

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  • 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.
  • 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,” it observed.

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.

  • Reliance was made on the Apex Court’s verdict in Shafin Jahan v. Asokan K.M (2018) 16 SCC 368, relying on the apex Court’s verdict, the Court noted thatthe Apex Court has consistently respected the liberty of an individual who has attained the age of majority.
  • The Court as well reiterate the Supreme Court’s pronouncements in many cases that the Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India”.

“The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. 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. 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 relationship of two major individuals who out of their own free will are living together. 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”.

  • 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,” it added.

Final order of the Court

  • 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,” held the Court
  • 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,” the Court said this as the definitive argument on behalf of the informant was that he be afforded visiting rights to meet his daughter.

Case Name: Salamat Ansari v. State of U.P. & 3 Others

Citation: Crl. Mis. Writ Petition No- 11367 of 2020

Coram: Hon’ble Pankaj Naqvi,J.& Hon’ble Vivek Agarwal,J.

[Allahabad High Court: 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].

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