Merely because a girl and boy involved in a relationship belong to different religions, the case cannot be given a religious angle, the Bombay High Court recently said while dealing with a case involving “love jihad” claims [Shaikh Sana Farheen Shahmir v. State of Maharashtra].
A Division Bench of Justices Vibha Kankanwadi and Abhay Waghwase observed the same while granting anticipatory bail to a Muslim woman, her parents and her sister, who were booked for allegedly forcing a Hindu man to convert to Islam and marry the woman.
“It appears that now the colour has been tried to be given of love-jihad, but when love is accepted then there is less possibility of the person being trapped just for converting him into the other’s religion…Merely because the boy and girl are from different religion, it cannot have a religions (sic) angle. It can be a case of pure love for each other,” the Bench observed in its judgment.
The Court was hearing an application filed by the woman and her family, who were denied anticipatory bail by a special court in Aurangabad.
The man accused the woman and her family of forcing him to convert to Islam. He even alleged that a forceful circumcision (Khatana) was also performed on him. Further, it was contended that the case had a “love jihad” angle, as he was forced to make some monetary transactions in favour of the woman’s family. Another claim made was that he was abused in the name of his caste.
The Bench, however, noted that as per the first information report (FIR), the man himself admitted that he had a love affair with the woman.
As per the prosecution case, the man and the woman were in a relationship since March 2018. The man belonged to the Scheduled Caste community, but did not disclose the same to the woman.
Later, the woman began insisting that he convert to Islam and marry her, after which the man disclosed his caste identity to the woman’s parents. They did not raise any objection to the same, and also convinced her daughter to accept it.
“That means he has posed, prima facie a good relationship between him and her parents at that point of time. When the initial relationship was good and the caste or the religion was not the barrier for them, then the question of raising the issue of caste or community or religion at a later point of time will not arise,” the Court noted.
Subsequently, the relationship turned sour.
The Bench took note of the other allegations raised by the man in his complaint, such as his alleged abduction and forcible circumcision in March 2021, the demand to convert him to Islam, the woman’s financial demands, the rape case filed against him etc.
The Court said that despite all such instances, the man did not sever his relations with the accused woman. It was also noted that the FIR was filed only in December 2022.
This, the Bench said, was surprising.
“We can see that there is an inordinate delay in lodging the FIR. When there is inordinate delay, it affects the story and may loose its importance. The fact will have to be observed that when the base for the relationship was the love affair, there was no barrier of caste or religion and therefore, prima facie case under the Atrocities Act cannot be said to be made out,” the judgment stated.
Notably, the special court had premised its orders on the fact that charges under the stringent Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act were invoked against the woman and her family.
It noted that a settlement deed was also signed between the two to amicably settle the dispute. Though the man’s advocate disputed the settlement, the Bench noted that the same was duly notarized and thus would be considered.
“We are of the opinion that prima facie offence under the Atrocities Act are not made out and therefore, there was no bar under Section 18 or 18-A of the Atrocities Act. Thus, the conclusion drawn by the Special Judge in that respect is wrong.”
Moreover, the Court noted that the probe in the case was almost complete, and that the police was likely to file a chargesheet soon.
Thus, the physical custody of the applicants would not be necessary for the purpose of investigation, the Court added.
As far as the claim of the man that he was forcefully circumcised, the Bench noted that an expert was asked to comment on the same by the police.
“However, the expert was unable to say as to whether the circumcision was natural or was due to any surgical intervention. The expert was also unable to say as to whether it was done by any medical professional or in a traditional way of Islam by an unauthorized person. He was also unable to say as to when it would have been done,” the judgment said.
In view of the above, the bench granted anticipatory bail to the woman and her family members.
Senior Advocate VD Sapkal along with Advocate Patel Khizer appeared for the applicants.
Additional Public Prosecutor SD Ghayal represented the State.
Advocates Swapnil Joshi and SB Deshpande represented the complainant.
