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Right To Choose A Partner Is A Fundamental Right

The Honourable Allahabad High Court recently in Salamat Ansari and others versus State of UP and others[1] cancelled a case against a Muslim man filed by the parents of his wife who had converted to Islam and became a Muslim before marrying him saying that the court doesn't see them as a Hindu-Muslim couple.

A Bench comprising of Honourable Justice Pankaj Naqvi and Justice Vivek Agarwal while doing so reiterated that a person's right to live with a person of choice, irrespective of religion, is intrinsic to the right to life, and of personal liberty.[2] The verdict comes amid the debate over love jihad.

This judgment is important in the sense that it upholds many Constitutional principles of liberty and freedom. The right to choose a partner is intrinsic in the right to life and personal liberty under Article 21 and provisions for the same have been made under the Special Marriage Act[3].

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 Allahabad High Court said.

Priyanka married Salamat against the wishes of their families in 2019. She converted to Islam and changed her name to Alia before wedding. Later, the father of the girl filed a case against Salamat of kidnapping Priyanka alleging that she was a minor. Provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO)[4] were added.

The court found that Priyanka was not a minor and that she entered into the relationship voluntarily and with full consent.

Right to life under the Indian constitution includes the right to lead a dignified life[5] and not mere animal existence[6].

Right to marry a person of one's own choice is included in the right to dignified life as marriage is an essential element of societal life. Also, marriage as per Indian law takes into consideration only whether the spouses have attained the age of majority as per Indian law[7] and whether they are willing to enter into such a relation.

Religion, community, society. etc., doesn't come into picture at all in a free and independent country. This is something which the legislature, the executive and even at times, the judiciary need to keep in mind. The judgment is good in law.

End-Notes:
  1. Crl. Misc. WP No. 11367 of 2020
  2. The Indian Constitution, 1950, art. 21
  3. The Special Marriage Act, 1954, Acts of Parliament, No. 43, 1954 (India).
  4. The Protection of Children from Sexual Offences Act, 2012, Acts of Parliament, No. 32, 2012 (India).
  5. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, AIR 1981 SC 746 (India).
  6. Ibid.
  7. The Indian Majority Act, 1875, Acts of Parliament, No. 9, 1875 (India).
Written By: Syed Aatif - The author is a practicing advocate at the Central Administrative Tribunal (CAT), Delhi High Court and the Supreme Court of India.
Email: [email protected]

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