YOUNG couples exercising their constitutional rights to enter into inter-caste and inter-community self-choice marriages have often to go to various courts in different parts of the country to seek their protection. On most occasions, the courts have given them a sympathetic hearing and have instructed state governments to provide them with security.  Nowhere has any court questioned the right of these couples to marry according to their own wishes.  Often courts have admonished those threatening such couples and, in cases where one or both have suffered from physical violence and even lost their lives, they have usually come down heavily against the culprits.

The recent judgment of a single judge of the Allahabad High Court in the matter of Priyanshi alias Shamreen has, however, seemingly bucked this hitherto large welcome trend.  The matter before the judge was as follows:  Priyanshi alias Shamreen, a Muslim by birth asserted that she had converted to Hinduism on June 26, 2020 and had married a Hindu on July 31, 2020.  She appealed to the court to direct the respondents which included the state of UP and her relatives ‘not to interfere with their peaceful married life by adopting coercive measures.’

The judge did not address this plea for protection but concentrated instead on the matter of her conversion.  He opined that since she had converted only one month before her marriage ‘the said conversion has taken place only for the purpose of marriage.’  In support of this, he quoted from a judgment delivered by the same court in 2014 in which ‘conversion for the purpose of marriage is unacceptable.’  He went on to say that “Even in the case of Lily Thomas (supra) Hon'ble Supreme Court observed in paragraph Nos. 7,8 and 40 that conversion of religion of a non-Muslim without any real change of belief in Islam and only for marriage is void."  As far as the second case is concerned, this judgment was given in the context of those who wanted to enter into bigamous marriages by converting to Islam.  All women’s organisations had supported the SC stand at that time and continue to do so.

The matter before the judge, however, concerned a first marriage and a plea for protection.  In this context, the SC judgment that should have been taken recourse to is the Hadiya judgment which had dealt with both questions, conversion (from Hinduism to Islam) and inter-faith marriage.  Here the SC bench had delivered a unanimous judgment with important comments being made by individual judges:  “The right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution”, the Supreme Court said and set aside a 2017 order of the Kerala High Court which annulled the marriage of Kerala Muslim convert girl Hadiya and Shefin Jahan.
“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme…Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution”, wrote Justice Chandrachud.
This judgement of the SC along with Justice Chandrachud’s written statement has left no room for ambiguity as far as the rights of citizens who are majors with regard to their choice of religion and/or life partners are concerned.
It is a matter of great concern that the Allahabad HC seemed to ignore this significant judgment which set to rest conflicting and contesting legal and other opinions in a case in which the young woman, Hadiya, had been subjected to incarceration, abuse and a long separation from her husband and which had fomented communal tension in her home state of Kerala where the HC had intervened strongly against both the conversion and the marriage. 
Most unfortunately, however, the Allahabad HC in its wisdom, did not take the Hadiya judgment into account and completely ignored the plea for ensuring security made before it.  The judge ended his judgment with the following pronouncement ‘In the aforesaid facts and circumstances, this Court is not inclined to interfere in the matter under Article 226 of Constitution of India. Consequently, the writ petition is dismissed. It will be open to the petitioners to appear before the concerned Magistrate to record their statements’.
The judgment has had far-reaching consequences.  Apart from the fact that the young couple in question have been left unprotected and in the lurch and, so far, nothing is known about what they are going through, it has come at a time when the BJP chief minister of UP has been leading a vociferous and vicious campaign against those engaged in ‘love jehad’. 
The BJP has been regularly raising the bogey of ‘love jehad’, first in Karnataka, then in Kerala and now in UP and other northern states.  Various courts have gone into allegations that there is a conspiracy on the part of many Muslim young men, often abetted by their family members and supporters, to trick Hindu women into marrying them.  These women are forcibly converted and then made to face various kinds of abuse and torture.  Several courts have gone into these allegations and have come to the conclusion that ‘love jehad’ is non-existent.  As recently as February 4, 2020, the union minister of state for home, G Kishan Reddy made a statement in parliament:  ‘Article 25 of the Constitution guarantees the freedom to profess, practice and propagate religion subject to public order, morality and health. Various courts, including the Kerala High Court, have upheld this view.  The term ‘Love Jihad’ is not defined under the extant laws. No such case of ‘Love Jihad’ has been reported by any of the central agencies,” he said in reply to a written question. (Emphasis added).

This unambiguous clarification has not deterred the UP CM and others in anyway.  He has been an indefatigable campaigner against marriages between Hindu women and Muslim men for decades and has become more strident after assuming office.  In the last few months, he has once again raised this issue after such marriages took place in Kanpur, Bareilly and other places in the state.  In almost all cases, the women have been found to be majors who have made their choice of partner voluntarily. 

The HC judgment has become a useful handle for Yogi who, completely ignoring the facts of the case, told his audience in an election meeting in Jaunpur that the court itself had come out against ‘love jehad’.  He threatened Muslim men who indulged in this with dire consequences, including death and said that his government was thinking of bringing a law to make such marriages illegal.

The Haryana chief minister was quick to follow suit.  In the atmosphere of anger against the brutal killing of a young Hindu woman who had turned down the advances made by a Muslim man, his statement that his government was also thinking of bringing in similar legislation has found some traction.  Not to be left behind, the MP CM also stated that his government too (if it survives the recent by-elections) would bring in similar legislation.

It is tragic that what appears to be an ill-thought out judgment by a judge of the Allahabad HC has the capacity to not only jeopardise the lives of many making their own decisions about matters of faith and marriage but is also providing grist to the mill of political leaders who have no compunctions about communalising issues for political ends.  When they bring issues of ‘the honour of our sisters and daughters’ to the forefront of their polarising campaigns they not only provoke terrible communal conflagaration but also threaten the basic, constitutional rights of these very same ‘sisters and daughters’.

AIDWA has issued a statement expressing its concern over the HC judgment and condemning the way it is being distorted to further inflame communal passions.  Legal options are being discussed with experts so that constitutional provisions can be safeguarded.