Kerala High court order on Love Jihad

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 5288 of 2009()

1. SHAHAN SHA A, AGED 23,
…  Petitioner
2. SIRAJUDEEN M, AGED 27,

Vs

1. STATE OF KERALA, REP. BY ASST.
…       Respondent

For Petitioner  :SRI.K.S.MADHUSOODANAN

For Respondent  :PUBLIC PROSECUTOR

The Hon’ble MR. Justice K.T.SANKARAN

Dated :09/12/2009

O R D E R

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B.A. NOS. 5288 & 5289 OF 2009
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Dated this the 9th day of December, 2009

O R D E R

When these Bail Applications came up for hearing on 29th September 2009, the following order was passed: “These Bail Applications are filed by Shahan Sha and Sirajudeen, the accused persons in Crime Nos.1102 of 2009 of  Tripunithura Hill Palace Police Station and Crime No.451 of 2009 of Peroorkada Police Station, for anticipatory bail under Section 438 of the Code of Criminal Procedure. The offences alleged against them are under Sections 120-B, 295-A and 377 read with Section 34 of the Indian Penal Code.

2. In this order, the names of the victim girls are not disclosed. No person, including the media, should disclose their names. For the sake of convenience, I would refer to the victim girls as the “Hindu girl” and the “Christian  girl”.

3. It would appear that the Hindu girl fell in love with Shahan Sha, the first petitioner in these Bail Applications. Shahan Sha is a Muslim. The victim girls were studying for MBA Course. They are friends. Shahan Sha was their senior student in the college. At one point of time, he was expelled from the college.  It would appear that the relationship between the Hindu girl and Shahan Sha started as a result of a telephone call. The intimacy developed.

From the inception onwards, it is alleged that Shahan Sha spoke ill about Hindu religion and its tenets, beliefs and traditions. The Hindu girl was taken to Shahan Sha’s house. She was taught the custom of the Muslim community, the mode of prayers and what should be done by a person in the normal life as a Muslim. Shahan Sha’s mother was there in the house and she co-operated with Shahan Sha.

Shahan Sha was constantly compelling the girl to convert to Islam. She was in utter confusion. It is alleged  that Shahan Sha stated to the girl that unless she converted into Islam immediately, their relationship would come to an end. At last, she agreed.

4. In the meanwhile, Shahan Sha and the Hindu girl had contact with one Shaji, who was running a DTP Centre. Shahan Sha and the girl used to go there for taking copies of documents. It is alleged that Shaji used to speak ill about Hindu and Christian religions. The Hindu girl and the Christian girl used to go to the shop of Shaji. The girls were also told that their respective religion is not good and the      only way to attain salvation is to embrace Islam.

5. Without the knowledge of the Christian girl, the Hindu girl was once taken to Ponnani by Shahan Sha. They stayed in a room. It would appear that Shahan Sha made some sexual advances towards her. However, it did not culminate in sexual intercourse.

6. The pressure mounted on the two girls to convert to Islam. They were directed to meet a person in a mosque. He also pressurized them to immediately convert to Islam. The girls were directed to come out of their house. Planning was made and the girls were instructed to comply with the directions given by Shahan Sha and his associates.

7.   Accordingly, at about 3 AM on 18.7.2009, the Hindu girl was ready to come out of her residence. After some time, one Yasin gave her a missed call, which was the indication to come out of the house. She came out of the house with the help of Yasin. She was taken in a Scorpio   r. Two ladies wearing Pardah were there in the car. After the Hindu girl entered into the car, she was compelled to wear Pardah. She obeyed.

8. While travelling in the car, the compact discs of Popular Front, an alleged extremist organisation, was being played. They proceeded to Ernakulam.

9. The Christian girl also came out of her residence in the early hours in a similar manner.     The persons who took the Christian girl met the Hindu girl at Ernakulam. The Hindu girl was taken to a house at Ernakulam in a different  car.   In that car, one Ali and Nishad, stated to be the activists of Popular Front, were travelling. The Christian girl was also brought to that house.

10. The girls were directed to contact their parents over mobile phone from a place different from the place where they were taken, in order to avoid locating them by ascertaining the mobile tower station. Accordingly, from a different place, they contacted their parents and as directed, they stated to their parents that they were going to Ponnani to convert to Islam.

The telephone call was snapped thereafter. The two girls stayed in the house at Ernakulam till the next day. On the next day, they were taken by one Khadeeja, who is stated to be the organiser of the Women Wing of Popular Front.       One Nishad was also there with her. They took the girls in a Lancer car to Malappuram. They reached the residence of Haneefa Haji.           After ten minutes, they were taken to another house at Kondotty.

They were made to stay there for two weeks. Thereafter, they were taken to the house of Haneefa Haji, where they stayed for two weeks.         The girls were visited by the members of Popular Front regularly.

11. There is no case that the Christian girl was in love with anybody. But when the girls were staying at the house of Haneefa Haji, several persons were brought to that house to see the Christian girl. Though a Dentist who came to see the Christian girl was willing to marry her, his parents were not willing. It is alleged that the proposal was to give in marriage the girls to somebody else. On 6.8.2009, Shahan Sha and one Shiraj met the Hindu girl and asked her whether she was willing to marry Shahan Sha. The girls came to know that the plan was to take them to Bangalore and to give them in marriage to somebody else. Two or three persons came there to see the Christian girl and to marry her.      At last, Shahan Sha brought his friend Sirajudeen, (the second petitioner) a K.S.R.T.C. Bus conductor to the scene.

12. Meanwhile, a Habeas Corpus petition was filed

by the parents of the missing girls. A direction was issued

by a Division Bench of this Court to find the whereabouts of

the missing girls. On 12.8.2009, the girls were taken by

Shahan Sha and Shiraj to an Advocate’s office at Calicut.

Two “deeds of agreements to marry” were executed. The

girls were made to sign the documents. One agreement

was between Shahan Sha and the Hindu girl and the other

was between Sirajudeen and the Christian girl.       They were

brought back to Haneefa Haji’s house.             During night,

Shahan Sha stayed with the Hindu girl and Sirajudeen

stayed with the Christian girl. On that night, the Christian girl

was subjected to unnatural sex. It is alleged that an offence

under Section 377 of the Indian Penal Code was committed.

13.   Later, Shahan Sha and Sirajudeen appeared

before the High Court along with the girls. The girls were

not willing to go with their parents. The court persuaded

them. At last, they agreed. It was with certain conditions

that they were prepared to go with their parents. Those

conditions were stipulated by Shahan Sha and Sirajudeen.

After a few days, the girls appeared before Court and stated

that they were not willing to go with Shahan Sha and

Shirajudeen. The Division Bench permitted the girls to go

with their parents. However, the articles belong to the girls

were with Shahan Sha and Shirajudeen. It would appear

that they “gracefully” agreed to return the articles to the girls.

B.A. NOS.5288 AND 5289 OF 2009

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The Division Bench was also pleased to pass an order not

to arrest Shahan Sha and Sirajudeen for a limited period.

The Division Bench made an attempt to settle the matter

between the parties. The parents of the girls stated that

they were not willing for a settlement. Their view was that

let the law take its own course. The Habeas Corpus petition

is stated to be pending.

14. The case diary would further reveal that several

compact discs were given by Shahan Sha to the girls. Most

of them were obscene films. Several books were also given

to them to persuade them to convert to Islam.

15. The girls stated to the police that Shahan Sha

and Shaji specifically directed them not to disclose to the

police that the activists belonging to Popular Front were

assisting Shahan Sha and Sirajudeen for implementing the

idea of converting the girls to Islam. The girls are of the

view that in the whole episode, their religious faith was

questioned and Shahan Sha, Shaji and Sirajudeen insulted

the religious faith and tenets of the respective religion of the

girls with deliberate and malicious intention of outraging their

religious feelings.

16. I have perused the case diary file. There are

indications that several similar instances took place in the

State of Kerala. It is stated that there is a movement or

project    which is called “Romeo Jihad” or “Love Jihad”

conceived by a section of the Muslims. The idea appears to

be to convert girls belonging to other religions to Islam. It is

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stated that Muslim boys are directed to pretend love to girls

of other religion and get them converted to Islam. Lot of

money is available for executing the project. There are men

whose help is available at any time. Organisations are also

there to implement the project.

17. Before disposing of these Bail Applications, I am

of the view that some additional information with regard to

the number of similar cases which occurred during the last

three years in the State of Kerala is required. The Director

General of Police shall file a statement within a period of

three weeks from today, touching upon the following

aspects: (1) Whether there is a movement called “Romeo

Jihad” or “Love Jihad” working in the State of Kerala? (2) If

so, what are their plans and projects? (3) Which

organisations are involved in such activities? (4)     Where

does the money come from for all these activities? (5) How

many school and college students and youngsters were

thus converted into Islam during the last three years? (6)

Does the alleged project involve an      all India basis and

magnitude? (7) Has it got financial support from abroad? (8)

Is there any connection between the “Love Jihad” movement

and counterfeiting, smuggling, drug traficking and terrorist

activities?

18. Every citizen of India is entitled to freedom of

conscience and the right freely to profess, practice and

propagate religion as enshrined in Article 25 of the

Constitution of India. This right does not extend to the right

to compel a person professing a religion to convert to

B.A. NOS.5288 AND 5289 OF 2009

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another religion. Compulsion is alien to the right conferred

under Article 25 of the Constitution of India. The freedom of

one man should not entitle him to encroach upon the

freedon of another.

19. In the facts and circumstances, I think the views

of the Central Government are also material in deciding the

questions involved in the case. Issue notice to the Assistant

Solicitor General of India. Registry shall furnish a copy of

the Bail Applications and a copy of this order to the

Assistant Solicitor General of India. A copy of this order

shall also be communicated by the Registry to the

Secretary, Home Affairs, New Delhi. A statement shall be

filed by the appropriate person on behalf of the Central

Government pointing out their views in the matter of

combating the activities of compulsive conversion of religion.

The statement shall also indicate all the necessary

information regarding “Romeo Jihad” or “Love Jihad”. The

statement shall be filed within three weeks.

20.   Learned counsel for the petitioners submitted

that the Division Bench was pleased to issue an order not to

arrest the petitioners till 30.9.2009, pending disposal of the

Habeas Corpus Petition. The counsel submitted that there

may be an interim direction not to arrest the petitioners. I

am not inclined to pass any such order in the facts and

circumstances of the case.

21.   Learned counsel for the petitioners submitted

that the Division Bench was convinced that no offence was

B.A. NOS.5288 AND 5289 OF 2009

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committed by Shahan Sha and Shirajudeen and, therefore,

there is no ground on which anticipatory bail should be

refused to the petitioners. I am not inclined to accept the

contention of the learned counsel for the petitioners. The

question whether Shahan Sha and Shirajudeen were guilty

of any offence was not in issue before the Division Bench.

Therefore, there was no opportunity for the Division Bench

to pronounce upon such matters. In fact, the Division Bench

has not stated anything, in the various orders passed by

them, on that aspect.

22. The counsel argued that the victim girls were

present before the High Court on three occasions and the

Honourable Judges of the Division Bench had occasion to

interact with the girls. The counsel points out that the girls

did not state to the Honourable Judges that they (the girls)

were compelled to convert to Islam or that the offence

alleged was committed by Shahan Sha and Sirajudeen. I do

not think that this is a material fact while considering the

application for anticipatory bail. The questions which came

up for consideration before the Division Bench were entirely

different. The orders passed by the Division Bench do not,

in my view, affect the investigation of the case or the arrest

of the petitioners.  Post after two weeks.”

2. The Director General of Police, Kerala, filed a statement dated

18th October 2009, the relevant portion of which is extracted below:

B.A. NOS.5288 AND 5289 OF 2009

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“2. It is submitted that on receipt of the order

dated 29.10.2009, enquiries were made to ascertain

whether any such compulsive religious conversion in the

manner referred to in the order is taking place in the

State of Kerala. The enquiries thus conducted have

yielded the following information with regard to the

questions raised by this Hon’ble Court in respect of

compulsive conversion.

Qn. (1) Whether there is a movement called “Romeo

Jihad” or “Love Jihad” working in the State of Kerala ?

Ans. No organization or movement called “Love Jihad”

or “Romeo Jihad” is so far identified as working in

Kerala.

Qn. (2) If so, what are their plans and projects ?

Ans.     As stated above, there is no clear evidence

regarding the operation of such an organization.

Qn.(3)     Which organizations are involved in such

activities ?

Ans. It is not established that any particular organization

is actively engaged in such compulsive religious

conversions.

B.A. NOS.5288 AND 5289 OF 2009

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Qn.(4) Where does the money come from for all these

activities?

Ans. No reliable evidence is so far available in this

regard.

Qn.(5) How many School and College students and

youngsters were thus converted into Islam during the

last three years?

Ans. Except for the two cases under consideration now,

no specific complaints have been received regarding

such compulsive love based conversions. In the two

cases under consideration before the Hon’ble Court,

Police    have   registered     cases   and are    actively

investigating the matter.

Qn.(6) Does the alleged project involve an all India basis

and magnitude?

Ans. There is no clear evidence so far regarding this

aspect.

Qn.(7) Has it got financial support from abroad ?

Ans. There is no reliable evidence so far regarding

financial support from abroad.

Qn.(8) Is there any connection between the ‘Love Jihad’

Movement      and     counterfeiting,    smuggling,  drug

trafficking and terrorist activities ?

Ans. There is no concrete information regarding this.

B.A. NOS.5288 AND 5289 OF 2009

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3.  Further, it is humbly submitted that certain

allegations have recently cropped up indicating that

some organizations have devised plans for compulsive

or deceitful religious conversions by winning over girls.

The Police is seriously looking into these allegations

and appropriate legal action would be initiated if the

allegations are found to be true in any particular

instance. No actionable information has been received

by the Police so far to confirm the fact that any

organization is indulging in such activities.

4. However, it is understood that a very large

number of inter-religious marriages are taking place

every year and that many conversions are taking place

on that basis. The exact details or the exact numbers of

such marriages are not readily available with any police

agency. At the same time, there are reasons to suspect

that there are concerted attempts to persuade girls to

change their religion after they fall in love with Muslim

boys.   There is also unconfirmed source information

received by the department that some groups are

actively  working     among    youngsters     encouraging

conversions by such techniques; that young men who

are engaged in such pursuits are said to be receiving

funds from abroad directly or indirectly for purchasing

clothes and vehicles and for availing legal help etc.; that

they have links with other places in India also.

B.A. NOS.5288 AND 5289 OF 2009

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5. In view of the existence of such complaints,

allegations and source information, the Police are now

actively trying to collect maximum information in this

regard and to specifically identify actionable instances.

The fact is that hardly anybody comes forward with any

complaint to the Police in these matters. However, the

Police will remain pro actively vigilant and take action in

all instances where any reasonable suspicion exists that

undesirable illegal liaisons are being attempted with any

ulterior purpose of compulsive conversion.

6. It is humbly submitted that police would take

stern lawful action against compulsive or deceitful

religious conversions whenever and wherever such

incidents are discovered. The intelligence agencies of

the Kerala Police are also being tasked to monitor the

activities of any organizations and groups alleged to be

indulging in compulsive religious conversion.”

3. When the Bail Applications came up for hearing, it was noticed

that some of the answers furnished in the Statement filed by the Director

General of Police are vague and that many of the statements do not

reconcile with each other. The Director General of Police was directed to

produce in a sealed cover the reports which he received from the District

Superintendents of Police and/or any other subordinate officers and all

B.A. NOS.5288 AND 5289 OF 2009

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other materials on the basis of which the statement was prepared. It was

also observed that the Director General of Police may also file an

additional statement, if found necessary by him.

4. Accordingly, the Director General of Police filed another

statement dated 9th November 2009. For the sake of completeness and

convenience, the statement is extracted below:

“It is submitted that this Hon’ble Court, by order

dated 29.09.2009, had directed me to file a statement

and to give answers to eight questions specified in the

order. Accordingly, I had submitted a statement before

this Hon’ble Court based on information available from

subordinate units.     After perusing my statement, this

Hon’ble Court vide order dated 26.10.2009 directed me

to produce the reports and materials based on which my

statement was submitted and also to file an additional

statement, if felt necessary. Accordingly, this statement

is filed.

2. I submit that the separate answers to the eight

specific questions raised by this Hon’ble Court were

made on the basis of the contents of the reports

received from various subordinate officers, through

written reports and oral submissions from them. The

confirmation of the oral submissions also were

B.A. NOS.5288 AND 5289 OF 2009

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subsequently received in writing.        Such information

indicated that no concrete and sustainable evidence

was available to establish that an organized movement

called ‘Love Jihad’ was operating in the State of Kerala.

There was no reliable evidence in such reports to

indicate a specific positive or definitive answer to many

of the questions posed by the Hon’ble Court.

3. I submit that, at the same time, as part of the

above reports, I had received some information from

some units based on source inputs, which suggested

the clandestine designs of certain groups aimed at

religious conversion through deceitful means, inter alia,

under the guise of love.      These inputs form part of

reports marked No.16 to 18 in the sealed cover. The

contents of these reports were relevant to the questions

posed by this Hon’ble Court but were at variance with

the contents of the other 15 reports. At the same time,

the contents of these three reports also were not backed

up with supportive evidence to come to a positive

finding. Mention was made of these aspects also in the

latter part of the statement dated 18.10.09 submitted

before this Hon’ble Court to give a complete picture of

the matter.    The information contained in the three

reports, though not substantiated, was relevant in the

consideration of the questions put to me by this Hon’ble

Court and hence I had submitted those aspects also.

B.A. NOS.5288 AND 5289 OF 2009

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4. It was specifically submitted in para 4 of my

report dated 18.10.09 that this part was based on

source information. Source reports are often based on

hearsay. They are usually not supported by any direct

evidence. Such reports often require to be clarified and

substantiated by      sustainable evidence.     They also

cannot be asserted as true unless there is supporting

material. It may be noted that no cogent and coherent

materials were available in the three reports mentioned

above to make an unambiguous statement regarding

the truth of the allegation of compulsive religious

conversion. However, the contents of the said reports

warranted further enquiries which I had caused to be

made, as already submitted in para 05 of my report

dated 18.10.2009.

5.    It is further submitted that my separate

answers to the specific questions are based on such set

of facts which could be substantiated by reliable

evidence.      However, the substance of the source

information based on which enquires were taking place

were also brought to the notice of this Hon’ble Court. It

is respectfully submitted that I could not come to a

definite all-inclusive finding due to the divergence which

existed in the contents of reports received from different

subordinate units which formed the basis of my report to

this Hon’ble Court.        The reports so received are

submitted herewith in a sealed cover, numbered as 1 to

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18 as mentioned earlier, in obedience to the direction of

this Hon’ble Court.”

5. I have examined the eighteen numbers of reports produced in the sealed cover. Fourteen out of the eighteen reports are cryptic. One report says: ” I am herewith forwarding a NIL report favour of information and further necessary action”. The other thirteen reports generally answer question No.1 as “not detected in the…….. District”, “the activities of `Romeo Jihad’ or `Love Jihad’ has not been noticed so far in the District”, “not working in the District”,  “there is no such organization working in the District” etc. The rest of the questions are answered as “NA” or “not applicable”. No useful information, either way, is disclosed in the aforesaid fourteen reports. It is also not stated in the reports on what materials or information or enquiry those reports were prepared.

6. One out of the eighteen reports mentions about the religious conversion centres run by Muslims and Hindus in Kozhikode city.
7. Three out of eighteen reports, provide some details.  One report says about the functioning of an organization called `Smart Front’ in two colleges.

8. Another report says that the enquiry by the Special Branch reveals that “fundamental outfits like NDF, PFI, Campus Front has roots in the college campuses” in the City referred to therein. Referring to Campus Front, it is stated in the report thus: “As per the available information, the plan of this organization is to trap brilliant upper caste Hindu and Christian girls from the well to do family, especially those who are studying for professional courses and employed in IT sectors.” It is also stated in the report thus:

“3. It is believed that Muslaim Organisation like

Muslim Youth Forum and Musalim Womens organization

like Thasreen Millat, Shaheen Force, Popular Front of India,

National Democratic Front and its students organizations

like Campus Front are the organizations behind the so

called Love Jihad movement.

4. There is no concrete evidence to show the financial

status of the organization. But it is known that they get

support and financial assistance from National Democratic

Front and Popular Front of India.       Some other muslim

fundamental organizations are also arranging money from

some foreign countries in Gulf.      But the veracity of this

information has to be ascertained.”

9. The aforesaid report also says that more than 100 instances of religious conversion took place in Thiruvananthapuram District with the help of the activists of the organizations referred to above.   The names and address of the boys and girls in 31 such cases are shown in the report. The report further says:

“6. So far there is no evidence to show that the love

jihad organizations have operations in all over India. But it is

said that the programme was started during 1996 with the

blessings of Muslim Organisations.
7.   No reliable information has been received with

regard to the financial assistance from aboard for the so

called love jihad activities. But during the enquiry it was

found that some active sympathizers had gone to Gulf and

they are giving financial support to their supporters. But the
veracity of this is yet to be ascertained.”

10. The last out of the eighteen reports contains the following details. There is no information that any organization under the name and style “Love Jihad” or “Romeo Jihad” is functioning in Kerala. However, the students wing of NDF and PFI, known as Campus Front is known to be promoting        religious conversion in educational institutions and professional colleges. This report also mentions about the involvement of Muslim Youth Forum, Shaheen Force etc. in these activities. Certain organizations in Saudi Arabia are providing financial assistance to these activities under the head “scholarship” to the youth. Accurate number of religious conversions are not available. As per one statistics, during the last four years,      a total number of about 3000 to 4000 religious conversions after love affairs have taken place. Another statistics is that 2800 girls were thus converted into another religion. In Kasaragod, Kannur, Kozhikode and Malappuram Districts, 1600 incidents of such conversions have taken place. The report also indicates about similar activities in Uttar Pradesh, Pune in Maharashtra, Bangalore in Karnataka where it is learnt that several Hindu girls were converted to Islam. The report concludes by saying that the Intelligence Wing is of the view that such love marriages may invite frictions in the society.

11. It is interesting to note that though the last mentioned report shows that 1600 incidents of conversions had taken place in Kasaragod, Kannur, Kozhikode and Malappuram Districts, the reports received from the District Superintendents of those Districts do not indicate the same. It is also interesting to note that though the Superintendents of Police state that no incidents of such conversions were noticed, some of the superior officers have reported otherwise.

12.   On 26-10-2009, the Assistant Solicitor General of India

submitted that he had received oral instructions in the matter. He sought

for further time to file a statement signed by a responsible person. Time

was granted till 11th November 2009.        On that date also, two weeks’

further time was prayed for and it was granted. The case was posted to

1st December 2009.         On that date, the Assistant Solicitor General

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submitted that a statement was being filed. A copy of the statement was

handed over in open court.       The copy handed over was a letter dated

18th November 2009 sent by Sri. Y.K.Baweja, Director (NIC), Ministry of

Home Affairs to the Assistant Solicitor General of India (enclosing the

statement to be filed before High Court) and a copy of the statement.

However, it was later reported by the Registry that no statement was

filed in Court. The copy handed over in open court is taken on record.

The submissions made by the Assistant Solicitor General of India were

also in tune with the statement. The statement is not signed by anybody.

In the statement submitted on behalf of the Ministry of Home Affairs

(referred to above), it is stated that secularism is a basic principle of the

Indian Constitution. After quoting Article 25 of the Constitution of India, it

is stated thus:

“2. The freedom guaranteed by the Constitution is to

profess, practice, and propagate religion.       The act of

practice is concerned primarily with religious worship, ritual

and observations. Propagation is concerned with right to

communicate beliefs to another person or to expand the

tenets of one’s religion but does not include a right to

forcible or compulsive conversion. Any use of force or

allurement for propagation of religion is illegal and may

cause law and order problems. `Public Order’ and `Police’

are the State subjects as per the Constitution of India and

hence prevention, detection, registration, investigation and

prosecution of crimes are primarily the concerns of the State

Governments/ UT Administrations.

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3.  The State Governments can enact legislations

providing for prohibition of conversions from one religion to

another by use of force or by allurement/inducement or

fraudulent means.      The State Governments of Arunachal

Pradesh, Gujarat, Himachal Pradesh, Madhya Pradesh and

Orissa, by exercising their powers in this behalf, have

enacted legislations to prohibit any person to convert or

attempt to convert, either directly or otherwise, any person

from one religious faith to any other religious faith by the use

of force or by inducement or by any fraudulent means, which

are the measures to maintain public order. The Centre is

not contemplating any move to make a centralized law on

the issue.”

13. Meanwhile, on 21st October 2009, the petitioners filed petition in each case to withdraw the Bail Applications. The relinquishment letter issued by the counsel appearing for the petitioners was also attached with the petitions. The Registry noted defect in the application. Instead of re-presenting the same, the petitioners sent the applications to the Registrar, High Court of Kerala, by registered post.The procedure adopted by the petitioners was not proper.

14. In the petition dated 21st October, 2009, the petitioners have narrated the various incidents and how they happened to take the girls out of their homes to rescue them from the alleged illegal confinement of their parents. It is also stated in the petition thus:

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“5. Considering the feeling of insecurity, the 1st

petitioner offered to marry Ms ———— (name omitted). The

2nd petitioner who had close acquaintance with the 2nd

petitioner for nearly 2 years decided to marry Ms.————

(name omitted). Petitioners were advised to swear to an

affidavit before the Notary to be shown before the police

officials that they are together living as husband and wife

and that there is no compulsion in their relationship and that

they embraced Islam voluntarily without any force or

coercion. The said affidavit was sworn on 12-8-09. On the

same day evening, the petitioners married Ms. ——— and

Ms. ————– respectively as per Islamic rites at the house

of Haneefa Haji at Kozhikkode.         Since the marriage was

taken place not at the instance of any Mahal, no certificate

could be obtained for proving marriage.”

15. In paragraph 16 of the petition sent by the petitioners, it is

stated thus:

“This Hon’ble     Court by Order dated 29-9-09 was

pleased to pass an elaborate order that has totally shattered

the petitioners’ faith in the impartiality of this Hon’ble Court.

The use of Terminologies like Hindu Girl, Christian Girl and

Muslim in the order virtually caused communal polarization

across Kerala and even beyond Kerala Territory. Though

the court, out of concern for the future of the “victim girls”

preferred to keep their name in anonymity and preferred to

call them as Hindu girl and Christian girl, not appreciating its

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consequence of causing communal division in the society.

The Court not satisfied by taking the name of the Petitioner,

even described him as Muslim lest people may miss the

religious identity of the Petitioner.  The court just allowed it

to be a ploy in the hands of the communal forces that laid

the trap of dividing the society on communal grounds. What

happened is unfortunate not only for the Petitioners but also

for the institution as well.     The damage it has done is

colossal. The media also followed suit.”

16. In the petition, there are several other insinuations as well

against the Court.     After quoting several sentences in the order dated

29-9-2009, the petitioners have made comments which border on

contempt of Court. I have no doubt that the petition was prepared by

somebody else- not by the petitioners. The intention of making a scathing

attack on Court is also obvious. However, I do not propose to proceed

further in the matter. I am inclined to forget and forgive. The petitioners

conclude the petition by quoting from the Holy Quraan.           I quote the

statement:

“In the circumstance Petitioners pray that the above

petition for anticipatory bail may be allowed to be withdrawn

as not pressed and we may be left to our fate allowing the

law to take its own course for the Petitioners believe that “If

Allah afflicts you with evil, none can remove it but HE: And if

HE blesses you with good fortune, none can prevent it: Know

B.A. NOS.5288 AND 5289 OF 2009

:: 25 ::

that HE has power over all things” (Quraan. Sura- 6 Verse

17.)”

17. I leave it at that. But, in the facts and circumstances of the case, I am not inclined to allow the petitioners to withdraw the Applications for Anticipatory Bail.

18. The “Association for Human Rights (AHR) has filed Criminal Miscellaneous Application No. 6651 of 2009 for the following reliefs:

“(A) ORDERS directing the Respondent State of Kerala,

Kerala Police Department, the Media persons, Print and

visual to refrain from and to avoid further deployment of the

usage “LOVE JIHAD’ OR `Romeo Jihad” in relation to

investigations of love trap cases conducted in Kerala: AND

(B) to pass such other or further orders as are in all the

circumstances of the case deemed fit, just and necessary to

restore sanity in public/civic life in the State of Kerala.”

Since the affected parties are not parties to the application and the

subject matter dealt with in the application is beyond the scope of the

matters involved in the case, I am not inclined to entertain the Application.

Leaving open the right of the Petitioner in the application to seek

appropriate remedy, Crl.Misc. Appln. No. 6651 of 2009 is dismissed.

B.A. NOS.5288 AND 5289 OF 2009

:: 26 ::

19. Our nation consists of citizen belonging to different religions,

communities, castes and creeds. All are citizens of India. All have equal

rights.  All the citizens have the fundamental rights enshrined in our

Constitution. A citizen of India is entitled to freedom of conscience and

the right freely to profess, practice and propagate religion as enshrined in

Article 25 of the Constitution of India. Our laws do not prohibit inter-

religious or inter-caste marriages.       True, religions   have their own

sanctions, faith and culture. When pitted against the Constitution and the

laws, the religious sanctions cannot override the former. Our Constitution

and the laws take care of religious faith, traditions and custom.

20.    Inter- religious marriages, arising out of love affairs or

otherwise, are to recognized and promoted.              To solemnize such

marriages, there need necessarily be any conversion of one party to the

marriage from one religion to another. If a boy or girl believes that a

marital union is not possible without the other party to love converting to

his or her religion, it is his or her faith. But in such cases, it is not love

that is prominent, but religion. Forcible, compulsive            or deceitful

conversion take place in such cases.         Nobody would say that it is a

healthy trend. Love is divine. It has no barriers of religion, caste or creed.

But under the pretext of love, there cannot be any forcible, compulsive or

deceitful conversion. It destroys the divine and sublime love.

B.A. NOS.5288 AND 5289 OF 2009

:: 27 ::

21. The Honourable Supreme Court in Lata Singh V. State of

U.P. and another: (2006) 5 SCC 475 has emphasized the need for

protecting the parties to inter -caste and inter- religious marriages. It was

held: “This is a free and democratic country, and once a person becomes

major he or she can marry whosoever he/she likes.”

22. From some of the reports submitted by the police officers

concerned to the Director General of Police, it is clear that there is a

concerted effort to     convert girls belonging to particular religions to

another religion. It is also clear that this is being done with the blessings

of some outfits mentioned in the reports. This should be of great concern

to the people at large and to the Government.            The Government is

bound to protect the fundamental rights and civil rights of citizens. Article

25 of the Constitution of India does not entitle a person to indulge in

activities for compulsive religious conversion. Compulsion is alien to the

right conferred under Article 25 of the Constitution of India. The freedom

of one should not entitle him to grab the freedom of another.

23. The rights of the parents to bring up their children in the way all

of them like, also cannot be lost sight of. Simply because a boy or girl has

become major, that does not mean that the parents have no say in the

B.A. NOS.5288 AND 5289 OF 2009

:: 28 ::

matter of their future and their career. The parents are entitled to protect

their children. The parents are entitled to advise their children and mould

their career. The right conferred under Article 25 of the Constitution does

not enable a stranger to deny the rights of the parents of the girls. Article

25 is aimed at protecting individual freedom. It is not aimed at destroying

the family set up and culture. In our country, there are laws for protecting

the rights of parents. There are also laws compelling the parents to

provide for even major children, in certain circumstances. The laws in our

country are aimed at protecting the rights of our citizens and protecting

the culture and traditions of our citizens.

24.   The fundamental right enshrined under Article 25 of the

Constitution of India that “all persons are equally entitled to freedom of

conscience and the right freely to profess, practice and propagate

religion” is subject to “public order, morality and health and to the other

provisions of Part III of the Constitution of India. Educational institutions,

professional colleges and other institutions where the young people are

engaged in their pursuit for learning and acquiring knowledge, are not

certainly the breeding grounds for propagating religion. The framers of

the Constitution would not have thought of converting educational

institutions as the venue for      propagating religion and for promoting

religious conversion.

B.A. NOS.5288 AND 5289 OF 2009

:: 29 ::

25. As rightly pointed out in the statement submitted on behalf of

the Ministry of Home Affairs, Government of India, the act of practice of

religion is concerned primarily with religious worship, ritual and

observations. Propagation takes in the right to communicate beliefs to

another person or to expand the tenets of one’s religion . It does not

include a right to forcible or compulsive conversion. Any use of force or

allurement for propagation of religion is illegal and may cause law and

order problems.

26. The statement submitted on behalf of the Ministry of Home

Affairs, Government of India, is also relevant on another aspect. Some of

the State Governments have enacted legislations to prohibit any person to

convert or attempt to convert, either directly or otherwise, any person from

one religious faith to any other religious faith by the use of force or by

inducement or by any fraudulent means. In the scenario in the State of

Kerala, it is for the people of the State, the Government and the

legislators to consider whether any such law should be enacted for the

State of Kerala. Let not our people fight against each other in the name

of religion and faith. Let not our children be compelled to deviate from

their path of pursuit of knowledge and learning. Let our children turn out

to be the best citizens of our nation. Let them live freely in the joyous

atmosphere of educational institutions. Let love be sublime, divine and

free from any other consideration.       If some of the students want to

B.A. NOS.5288 AND 5289 OF 2009

:: 30 ::

become religious scholars, let them do so, but not at the peril of other

students.

27. Considering the facts and circumstances of the case and the

nature and gravity of the offence alleged against the petitioners, I am not

inclined to grant the discretionary relief under Section 438 of the Code of

Criminal Procedure in their favour. The petitioners are not entitled to the

discretionary relief under Section 438 of the Code of Civil Procedure.

28. For the aforesaid reasons, the Bail Applications are dismissed. The Registry will send a copy of this Order to the Chief Secretary to the Government, Government of Kerala.

(K.T.SANKARAN)
Judge