A Hindu boy married a Muslim girl which created an uproar in the local communities, which is of course nothing unusual, in the prevailing social scenario. The police tried to dislodge and undo even the Marital-tie between the two of them. The issue came up before the Allahabad High Court. Justice V. M. SAHAI AND BARKAT ALI ZAIDI heard the matter and frowned upon the Police thus:
“In cases like these, the Law Enforcement Authorities usually buy peace at the cost of the constitutional rights and privileges of citizens of this country. They pander to the sentiments of the illiterate masses which comprised the major part of our communities in order to maintain peace. They fail to realize that they are thereby rendering the constitutional rights of individuals nugatory and redundant. The real role of the Law Enforcing Agencies is to protect and preserve the rights of individuals guaranteed by our paramount parchment, and, to deal with an iron hand all those persons, who want to decimate and demolish those privileges.”
The Court expressed its dissatisfaction thus:
“As usual, this is not happened in this case, and the police is trying to dislodge and undo even the Marital-tie between the two of them. The police must be emphatically asked to refrain their doing so. They are free citizens of this country and they have a right to marry according to their own wishes, of course if they have attained the age of majority. Their sacrosanct privileges should not be allowed to be rendered non-functional.”
The Court being satisfied by the submission of the Boys and Girls who unequivocally stated that, they are major and have married to their own free will, the court directed the police not to interfere in the matrimonial life of the petitioners, and to provide protection as and when necessary. This case is reported in AIR 2006 ALLAHABAD 60 "Pooja Arya v. State of U. P."
In yet another case a young woman aged about 27 years who is a graduate and at the relevant time was pursuing her Masters course in Hindi in the Lucknow University left her brother's house of her own free will and got married at Arya Samaj Mandir, Delhi to one Bramha Nand Gupta who has business in Delhi and other places. The peti-tioner's brother lodged a missing person report at Sarojini Nagar Police Station, Lucknow and consequently the police arrested two sisters of the petitioner's husband along with the husband of one of the sisters and the cousin of the petitioner's husband. Petitioner's brothers Ajay Pratap Singh, Shashi Pratap Singh and Anand Pratap Singh were furious because the petitioner underwent an inter-caste marriage. One brother of the petitioner's husband was locked in a room by the petitioner's brothers for four or five days without meals and water. They also lodged a false police report alleging kidnapping of the petitioner against her husband and his relatives at Police Station Sarojini Nagar, Lucknow. The petitioner's brothers also threatened to kill the petitioner's husband and his relatives. The Gupta family members are afraid of going to Lucknow out of fear of violence by the petitioner's brothers, who are of a criminal bent.
A final report was submitted by the SHO, Police Station Sarojini Nagar, Lucknow before the learned Judicial Magistrate inter alia mentioning that no offence was committed by any of the accused persons and consequently the accused were enlarged on on bail on furnishing a personal bond on 16-5-2001 by observing that neither was there any offence nor were the accused involved in any offence. Thereafter the Investigating Officer recorded the statement of the petitioner Lata Gupta @ Lata Singh on 28-5-2001 and for this purpose armed security was provided to her. The learned Chief Judicial Magistrate, Lucknow recorded the statement of the petitioner under Section 164, Cr.P.C. on 29-5-2001. In that statement the petitioner stated that she married Bramha Nand Gupta of her own free will. Despite this statement, the learned Chief Judicial Magistrate, Lucknow passed the committal order on 5-10-2001 ignoring the fact that the Police had already filed a final report in the matter.
The case was taken up under Article 32 of the Constitution of India for quashing the Sessions Trial No. 1201 of 2001 under sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 registered at Police Station Sarojini Nagar, Lucknow. The Supreme Court spoke thus:
“ This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.”
“We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.”
The Court further held that “Since several such instances are coming to our knowledge of harassment,threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.”
“The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”
The Apex Court even ridiculed the instances of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will.It held thus:
“We sometimes hear of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.”
The Supreme Court allowed the Writ Petitions and quashed the proceedings and directed that the police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned. The Court also directed to initiate criminal proceedings against the petitioner's brothers and others involved in accordance with law.
Universal Declaration of Human Rights, 1948, expressly envisages that men and women of full age without limitations due to race, nationality or religion, have "the right to marry and found a family".
Article 16(1) . Men and women of full age, without limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 18. – Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Now let us examine our Constitutional Provisions. Article 21 deals with Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 25 deals with Freedom of conscience and free profession, practice and propagation of religion.Article 25.(1) : Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
Against this background, let us now examine the facts of the infamous case of Love Jihad, as disclosed in their Petition filed for Quashing the Crimes registered against them.
BEFORE THE HON’BLE HIGH COURT OF KERALA AT ERNAKULAM
Crl. M.C.No. of 2009
(Against the Crime No.1102/2009 Thripunithura Hill Palace Police Station.)
Petitioners:
1. Shahansha A, aged 23 years, S/o. Dr. Akbar Sha, Keecheriyil (House),
Petta, Pathanamthitta.
2. Sirajudeen M., aged 27 years, S/o. Meera Sahib, Kothuval Veedu, Petta,
Pathanamthitta.
Vs.
Respondents:
1. The Assistant Commissioner of Police (K.S.Gopakumar),Cantonment Sub
Division,Thiruvananthapuram City.
2. The Sub Inspector of Police, Hill Palace Police Station, Tripunithura.
3. Bino Jacob, Karingottu Banglow, Pallikkal Post, Kottarakkara.
4. Anu, D/o Philip, Mookkancheril House, Kannankulangara, Nadama
Village, Tripunithura.
5. Jacob Thomas, S/o. late K.C. Thomas, Karingottu Banglow, Pallikkal
Post, Kottarakkara.
6. State, represented by Director of Prosecution,High Court of Kerala,
Ernakulam.
MEMORANDUM OF CRIMINAL MISCELLANEOUS CASE FILED UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE
STATEMENT OF FACTS
1. The petitioners are accused in the crime no. 1102/09 registered by Station House Officer, Tripunithura Hill Palace Police, under the caption “Man missing. A copy of the FIR in Crime No. 1102/2009 is produced and marked as Annexure A1. It is a complaint lodged by the 4th respondent , Mrs. Anu Philip, who claimed to be the Aunty of the 3rd respondent Bino Jacob, alleging that on 18-7-09 her niece Bino Jacob was missing. A copy of the FI Statement made before police by the informant is marked as Annexure A2. The Assistant Commissioner of Police Cantonment Sub Division, Thiruvananthapuram City, filed a report before Additional Chief Judicial Magistrate Court, Ernakulam, alleging that he is investigating the Crime No. 1102/2009 registered under the “caption man missing” and that in the course of investigation he learnt that the petitioners are reported to have committed the offences punishable under Section 120B, 295A, 377 r/w Section 34 IPC and that the investigation is in progress. A true copy of the report is marked as Annexure A3. Annexure A3 report is totally false, deliberately concocted obviously ill-motivated as can be see from the following facts and circumstances.
2. The 3rd respondent Bino Jacob and her friend Mithula V are students for MBA Course in St. Johns College, Prakkanam, Pathanamthitta. The 1st petitioner also was a senior student in the same college. He was a student activist and popular senior student. He was also the District President of Muslim Students Federation. His father is a doctor. He completed his course in March 2008.
3. The friend of 3rd respondent Mithula developed a genuine interest in religion of Islam and read a lot of religious literature with the assistance of 1st petitioner which has enlightened her intellect, influenced her thought and ultimately impelled her to live as a devout Muslim, perform the daily prayers (Namas)according to Islam. Her family also knew about her interest in Islam as they perceived in her total indifference in visiting temples. There was also telephonic communications between the families of Mithula and the 1st petitioner. The Press Statement of Dr.Akbar Sha, the father of the petitioner, published in Kala Kawmudi weekly is produced and marked as Annexure A4. The relation ship of the 1st Petitioner and Mithula ultimately blossomed into a tender warm and impeccable love affair. Mithula declared her intense love and desire to be the consort of the 1st petitioner through a valid marriage .She send numerous messages through internet and mobile phone. The English translation of one of the early love messages, sent in e-mail ( e mail dated 5.3.2008 in Malayalam but written in English alphabets) reads as follows:
“Dearest Sha Chettan,
You may be surprised why suddenly E-mail like this. Mostly I send those matters in E-mail, which cannot be directly put to Sha Chettan. Are there not problems in every one’s life. Like wise my problem in my house began of even on my very 1st birthday. There after nobody hither to had celebrated my birthday and nobody remembered it often. Did you not ask me today why there is problem in talking to my father. There is problem you need not know for the time being. Is it possible for me to tell them to you now from my house when my mother is with me. I will have to tell about it one day. Kindly show that, much patience. Is it possible for me to tell them from her or in a message. For heavens sake kindly be patient till I reach the hostel. My problems will end only with me. When you know my problems Sha Chettan’s mind also will be pained unnecessarily. I do not like Sha Chettan getting mentally troubled. ……………… Did you not tell me not to talk with my father if you do not like………………….. In that pretext, you would not attend my phone for 3 days. I have nothing to say as I cannot afford to compel. Now I have problems only. My eyes are tearful and my heart pain is suffering. However, for any problem of mine you are my instant cure my friend. Do me a favour if possible till I reach the hostel please talk to me in normal mood”.
A true photocopy of the print out of E-mail message in Malayalam written in English alphabets and its transliteration are produced and marked as Annexure A5 and A6. One more similar message of expressing genuine love dated 12-5-2008 and its English transliteration are produced herewith and marked as Annexure A7 and A8.
4. There is umpteen numbers of sweet messages sent by Mithula to the 1st petitioner, which also contain Quranic Versus and Sayings of Prophet the details of which in a consolidated form is produced and marked as Annexure A9.
5. It is respectfully submitted that the 3rd respondent Bino Jacob, and Mithula were roommates in the college hostel. The 3rd respondent also got influenced by her friend Mithula and both went through religious literature together and decided to lead a way of life visualized by Holy Quran and precepts of prophet. They started performing compulsory daily prayers and even the optional mid night prayers (Thahjud) regularly and secretly from their room. But unfortunately the hostel mates of these students who noticed them performing the prayers conveyed the information to the Principal of the college and the family members of the 3rd respondent. There was no love affair between the 1st petitioner and 3rd respondent Bino Jacob. The 2nd petitioner being a close friend of the 1st petitioner was also aware of these developments and the 2nd petitioner was thus intimately known to the 3rd respondent as a friend of the 1st petitioner.
6. The respondents 4 and 5 and the family of Mithula having got information about the secret conversion of their daughters in to the religion of Islam, promptly removed them from the hostel in June 2009. The 3rd respondent Bino Jacob was compelled to stay in Tripunithura with her Aunty and Mithula at her house in Perurkkada. They were always escorted by their parents or other relations whenever they go out to ensure that they do not revive any contact with the petitioners. The telephone numbers of the petitioners were erased from the sim card but unfortunately could not do so from their heart and mind.
7. In the second week of July 2009 the 3rd respondent called the 1st petitioner and complained that she was being obstructed by her parents from performing her daily prayers and that their parents were planning to sent abroad and get married with some other persons of their choice and that unless something is done, it would be difficult for her to live as Muslim and that she has lost all contact with Ms.Midula ever since June 2009 and she is making efforts to get in touch with her. She also informed that all her contact numbers in the mobile has been deleted by the parents and she is making this call to the 1st Petitioner only because she knew the number by heart. Ms.Bino Jacob later managed to contact the Ms.Midula and pass the message that she could revive contact with the 1st petitioner and to share the trauma of confinement. Ms.Midula after about two days phoned the 1st petitioner and informed that her marriage is being arranged and it is likely to be fixed immediately after the Chovvadosham which will be over by September 2009. She asked for his help to escape from the illegal confinement of her parents. The 1st petitioner expressed his helplessness to do anything in the matter as his parents are still not agreeable for marriage. Ms.Midula then pleaded to help her at least to go to Ponnani for Islamic study and proclaim openly that she is a Muslim and live without the fear of interference of parents. The 1st petitioner could not assure any help even for that suggestion. However Ms.Mithula and the 3rd respondent Ms.Bino Jacob persuaded him to explore possibility for taking them out of their illegal confinement and to arrange for reaching Ponnani. (The telephonic conversation to which the investigating agency has access can verify these facts).Pressurized by the frequent plea for help, the 1st petitioner with the help of his friends gave shelter to the 3rd respondent and Mithula on their escape from their residence on 18-7-2009. This resulted in Annexure A1, FIR and A2, FI Statements.
8. Considering the insecurity and the anxiety of the 3rd respondent and Ms.Mithula, and taking stock of their commitment to Islam, and resolution to live as Muslim, the 1st petitioner against the will of his parents decided to marry Ms.Mithula and the 2nd petitioner to marry the 3rd respondent. The resolution of the parties got reduced into writing in a stamped paper attested by a Notary. True copies of the agreement executed on 12.8.09 by the 2nd petitioner with the 3rd respondent is produced and marked for reference as Annexure A10. Similar agreement was executed by the 1st petitioner with Mithula on the same day. This was followed by a Nikah on the same day at the house of Haneefa Haji at Kozhikkode. The nikhah was performed by Janab AbdulSalam Maulavi in the presence of Melechelari Hanafa Haji and Mohammed Sahib from Edavannapara. Janab Mohammed Kutty sahib was the authorized person to perform nikhah on behalf of the 3rd respondent and Mithula. The Petitioners thereafter lived with their spouses in the house of the Haneefa Haji for 2 days and conducted valima (marriage reception) in the same house itself.
9. It is submitted that on 13.8.2009, Mithula received a soothing message from his brother Sri.Mithun, in E-mail, a copy of which is produced and marked as Annexure A11. He wrote as follows:-
“If you had atleast indicated me about your intentions I would have talked with parents and found out a solution. I know that you were looking for freedom from our parents as you do not like to get married from our caste or religion. I had a lot of plan for you. Even if I changed the job it was for you only. I never thought of my wife or am other alliance. My main aim was your better future which I was unable to achieve……………… I would like to be in touch with you. Think about my relation with you in the past. Please provide your contact details. I will not disclose this to any body. I want to know your safety even if you are in somebody’s hands.”
Sri. Mithun concluded his message with brotherly love and affection as below:
“I want to talk with you, My dear”.
10. It is submitted that the 5th respondent, the father of Bino Jacob and the father of Ms.Midula filed Habeous Corpus before the Hon’ble High Court as W.P.(Crl)No.317/2009. The allegation in the Habeas Corpus petition is that their daughters are missing from 18-7-2009 and that their daughters are in the illegal confinement of the 1st petitioner. The petitioners appeared before the Division Bench in Habeas Corpus Petition on 21-8-09 along with their spouses.
11. Before the Hon’ble High Court Ms.Midula and Bino Jacob submitted that they have embraced Islam without any coercion or force and that they are not interested to go with their parents as they have got married as per Islamic law with the petitioners and they have lived as husband and wife and that they should be sent with their husbands. The 3rd respondent and Mithula declined to talk to their parents much less to interact with them. The Division Bench has recorded this aspect in its order dated 26-8-09:
“The alleged detenues who are aged about 23 years had stated before us that they are in love with the 4th respondent and Sirajudhin and that they had voluntarily and willingly decided to get married to those two youngmen. One of them was their senior in College (R4) whereas the other (Sirajudhin) was known to them”. Referring to the attitude of the 3rd respondent and Mithula towards their parents, the court records thus:
“Initially they were reluctant to speak to their parents and it is only with much persuasion exercised by us in the interest of harmony that they agreed to speak to their parents and go with them”.
12. The Hon’ble Division Bench while directing the 3rd respondent and Mithula to go with their parents issued the following orders:
“4. After 1.45 p.m. we met both the alleged detenues in the chamber and interacted with them separately initially and later jointly. We subsequently had interactions with the parents of the alleged detenues as also the 4th respondent and the said Sirajudheen in the presence of their counsel as also the learned Government Pleader. Such interactions at he chamber, we are happy to note, has resulted in broad agreement between the parties. They agreed on the following terms:
i) That the alleged detenues shall today go with their parents.
ii) The parents shall take them to their residences at Kottarakkara and Thiruvananthapuram for residence and shall not take the alleged detenues to any other place.
iii) At their houses, the alleged detenues shall be given absolute freedom regarding prayers, food etc. of their choice.
iv) They shall be permitted to be in contact over telephone with the 4th respondent and the said Sirajudheen during this period.
5. The alleged detenues, along with their parents, shall appear before this court on 28-8-2009. The parents agreed that they shall respect the wishes of their children, who are more than 22 years old now, regarding their religious preferences and their decisions regarding marriage.
Appropriate further directions shall be issued on 28-8-2009.”
13. The 3rd respondent and Mithula were thus allowed to be taken by their parents but the parents flouted the condition directing them to allow the girls to contact the petitioners till 28.8.09. The 1st petitioner though had contact for 2 days, it was thereafter severed. 1st petitioner during this period came to know from Ms.Mithula that she was taken not to her home but to the house of the grandmother and lots of visitors had come home for 2 days to convince her for reversion to Hinduism. She also sent an SMS to the 1st petitioner on 22-8-09 which reads thus:
.
“This is send by advocate.Check my mail also.Then cal me.mithula_v@yahoo.co.in.”
The E-mail sent by the Advocate of the 5th respondent in the Habeas Corpus Case contained the list of friends of the 1st petitioner in the Orkut. Ms.Mithula was aware of these friends as she has been accessing these messages sent to the 1st petitioner using his pass words. This indicates that there was concerted efforts to brain wash her with misinformation with a view to break the relation and hook the Petitioners in false cases. The 1st petitioner thereafter could not talk to Mithula. A true copy of the E mail send by Advocate Santhosh Mathew to Midthula on 22-8-09 is produced herewith and marked for reference as Annexure.A 12.
14. The 2nd petitioner however was not allowed even once to contact the 3rd respondent. The petitioners under the circumstance filed a petition in the Habeas Corpus matter to advance the case and to recall the order dated 21-8-09. The Hon’ble High Court advanced the case to 26-8-09. The 5th respondent, Jacob Thomas did not appear on 26-8-2009. He was alleged to have been hospitalized. On that day the 3rd respondent and Mithula declined to talk to the Petitioners. The petitioners reasonably infer that during the brief custody enforced by Hon’ble High Court from 21-8-2009 to 26-8-2009, the 3rd respondent and Mithula would have been tortured, threatened and coerced to decline to speak to the petitioners and to forsake them. The Division Bench unfortunately declined to probe into the mystery of the sudden and unexpected volte-face of the alleged detenues in their attitude towards the petitioners. The Division Bench solaced itself with a veiled apology:
“The reasons that prompt the alleged detenue to change their stand and assert that they do not want to do anything with 4th respondent or Sirajudheen is of course a little confusing”.
15. It is submitted that considering the volte-face stand of the 3rd respondent and Mithula, the Division Bench ought to have kept them in a hostel or other safe place for introspection to know their stand at least for resolving the judicial “confusion” and the real reason for their sudden change of attitude could have been known. However the Division Bench did not entertain the plea for such an exercise. The Hon’ble Division Bench justified its reluctance to clear this confusion professing that they have “to respect the wishes and desires of alleged detenues who have crossed the age of 22 years.”
16. It is submitted that on 8-9-09 the petitioners asserted before the Hon’ble Division Bench that the 3rd respondent and Mithula are under the spell of influence of their parents and they are not speaking their mind voluntarily. They humbly requested the court that the alleged detenues may at least be asked to explain and state before the Court what wrong they have committed to the alleged detenues. They submitted that because of their relationship with the alleged detenues, they have been reduced to “laughing stock and are obliged to face public ridicule. They have done nothing to deserve such response”. The Division Bench recorded that the Ms.Midula and Bino Jacob “ remained silent and did not utter a single word implicating” the petitioners in any offence.
17. It is submitted that the Division Bench however was pleased to appreciate the gracious conduct of the petitioners who returned the personal effects of the 3rd respondent and Mithula and consoled them with a specific direction to the police, not to arrest till 8-9-2009 which order was further extended till 30.9.2009. The Habeas Corpus was closed on 30.9.2009 stating that no further directions are necessary in the writ petition. The orders dated 21.8.2009, 26.8.2009, 8.9.2009 and 30.9.2009 are produced herewith and marked for reference as Annexure A13(a), (b), (c) and (d) respectively.
18. It is respectfully submitted senior police officers having family relationship with the Ms.Midula and Bino Jacob, despite knowing the fact that the Ms.Midula and Bino Jacob had in fact left home by their own volition , to embrace Islam and become Muslims (which choice was not possible while living with the parents) wanted to give a mischievous twist to the incident and managed to cook up a story after “love jihad” an offending terminology used by Hindu fundamentalist against Muslims and framed a story that love jihad is a concerted move of Muslim extremists to convert people to Islam pretending love. The Crime No.1102/09 and 451/09 registered with Hill Palace Station, Tripunithura and Peroorkada Police Station respectively for man missing was later modified and booked the petitioners for offences under Section 295 A and 377 read with Section 120 B of the Indian Penal Code.The Investigating Officers used Hindu and Christian communal elements in the state to support their case and justify the report before the Court.
19. It is significant to note that though the 3rd respondent and Mithula had appeared before the Division Bench and had occasion to complain about those alleged unusual offences committed by the petitioners while living as husband and wife after execution of agreement of marriage and solemnization of marriage under Muslim Law, did not make any statement to sustain the new charge laid by the police. Unfortunately the report of the Police Officers, who are interested in Bino Jacob and Mithula and known to be related to them fabricated false statements of others who had no chance to witness the alleged offences and deliberately mislead the Hon’ble Court by way of vengeance and malice, when the application for anticipatory bail filed by the petitioners as B.A.No.5288/2009 was considered by a Single Bench of this Hon’ble Court.
20. The Hon’ble Single Bench simply swallowed the false statements of the Police Officers and ignored the entire facts especially what transpired before the Division Bench and refused to grant the anticipatory bail to the petitioners at least with stringent conditions. The Hon’ble Single Judge accepted the fairy tale narrated by the police in their case diary and held that there are indications that several similar instances took place in the State of Kerala. The Single Judge observed as follows:
“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 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. Organizations are also there to implement the project…………..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 organizations 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 trafficking and terrorist activities? ”
21. The repeated argument of petitioner’s counsel that the alleged detenues did not give hint to the Hon’ble Judges that they were compelled to convert to Islam or subjected to unnatural sexual crimes the offences alleged in the case diary, the Hon’ble Single Bench parried the issue by twisting the implication of the order of Division Bench and virtually superseded the direction not to arrest the petitioners in the following words:
“I do not think that this is a material fact while considering the application for anticipatory bail. The question which came up for consideration before the Division Bench was entirely different. The orders passed by Division Bench do not in my view effect the investigation of the case or the arrest of the petitioner.” A true copy of the Order in Bail Application No.5288/2009 dated 29.9.09 is produced herewith and marked for reference as Annexure.A14.
22. The petitioners respectfully submits that in the pretext of probing into thousands of such cases as ordered by Hon’ble High Court, the petitioners are kept beneath the dangling Democlesian sword of disgraceful arrest and pretrial detention . The scope of the above sprawling enquiry is too wide to be completed soon, too comprehensive to wind up, because it assumed magnitude of a global enquiry, while these two petitioners are ordained to languish in the fear of being arrested, detained, and tortured by the police for no offence made out against them in the FIR and in the subsequent report filed by the 1st respondent.
23. It is submitted that the 1st respondent seized certain books under a seizure mahzer, a true copy of the seizure mahzer prepared by the investigating officer after searching the hostel room occupied by the 3rd respondent and Bino Jacob is marked as Annexure A.15. The following are the books seized under Annexure.A15.
1) ഇസ്ലാമിക ജിവിതം written by മുഹമ്മദ് അമാനി മൌലവി
2) Mechanics of the Doomsday and life after death by S.Bashirurudhin Mohammed
3) Islam and Management by Dr.Naeeur Jabnoun
4) ഉമ്മുല് മുഅമിനീന് ആയിശ written by സയ്യിദ് സുലൈമാന് നദവി
5) ദൈവാസ്ഥിക്യതിന്റെ ഭൌതിക ദ്രഷ്ടാന്തങ്ങള് written by ഇമാം ഗസ്സാല്
6)ഇസ്ലാമില് സ്ത്രിയുടെ പദവി written by ബി. ആയിശ
7) അല്ഹിതായ കര്മസാസ്ത്രടര്സനം written by മൌലവി മുസ്തഫ ഇബ്രാഹിം കൊട്ടക്കര
8) മരണാനന്തരജീവിതമ് written by ഹസ്രത് മൌലാന മുഹമ്മദ് ആശിഖ്
9) ഉത്തമ മുസ്ലീമ് നാമങ്ങള് written by Moulavi K.T.Abdunazzar al Qasimy M.A.Paduppady
10) ഇസ്ലാം മതസിധാന്തസംഗ്രഹം written വക്കം അബ്ദുല് ഖാദേര് മൌലവി
11) തടവറയില് നിന്നും പള്ളിയിലേക്ക് written by അബ്ദുള്ള അടിയാര്
12) രോഗവും ചികിത്സയും ഇസ്ലാമിക വിക്ഷണത്തില് written by ഡോ :മുക്താര് അഹമ്മദ്
13) സ്ത്രീ ഇസ്ലാമിക സമൂഹത്തില് written by അബ്ദുസലാം വാണിയമ്പലം
14) യേശുവിന്റെ പാത മുഹമ്മദിന്റെയും written by പ്രൊഫ്.ഷാഹുല് ഹമീദ്
15) നബവീ നിമിഷങ്ങള് written by മൌലാന മുഹമ്മദ് ഇല്യാസ് നദവി
16) തൌബ യുടെ മഹത്വങ്ങള് written by ഹസ്രത് ആശിഖ് ഇലാഹി മദനി (ര )
17) റംസാന് പുണ്ണ്യ ങ്ങളുടെ കലവറ written by അമ്പുല് ആലിയ കൊല്ലയില്
18) മുഹമ്മദ് നബി മാനുഷ്യകത്തിന്റെ മഹാചാര്യന് written by ശൈഖ് മുഹമ്മദ് കാരകുന്ന് , വാണിദാസ് ഇളയാവൂര്
19) ഖുറാന്റെ മുന്നില് വിനയാന്വിതം written by വാണിദാസ് ഇളയാവൂര്
20) സുല്ത്താന്റെ സലാഹുദ്ദീന് അയൂബി written by സിദ്ദിഖ് ചേരൂര് ഫൈസി
21) നിയമത്തിന്റെ അടയാളങ്ങള് അഥവാ ഖിയാമം എപ്പോള്? written by മുഹമ്മദ് ബഷിര് ചിസ്തി
22)ഇസ്ലാമില് കരാരുകളുറെ പ്രാധാന്യം written ബൈ മൌലാന അബ്ദുല്ലാഹില് മാറുഫി
24) ഭാര്യാഭാര്ത്രബാധ്യതകള് written by ടി.കെ.അബ്ദുള്ള മൌലവി
25)ഞാന് സ്നേഹിക്കുന്ന ഇസ്ലാം written by അടിയാര്
26) ല ഇലാഹ ഇല്ലല്ലാഹു ആദര്ശം നിയമം ജീവിതവ്യവസ്ഥ written by മുഹമ്മദ് ഖുത്ബ്
27) Masnoon Duaan – Prayers of the Prophet written by എം.അബ്ദുല് ഹമീദ് സിദ്ദിഖ്
28) Six points of Tabligh written by Moulana Ashiq Elahi
29)ഹനഫി നമസ്കാര ക്രമം (മലയാളം അറബ് ഭാഷകളില്) written by കെ.എം.ജമാലുധിന് മൌലവി
30) ഹനഫി നമസ്കാര ക്രമം (മലയാളം) written by കെ.എം.ജമാലുധിന് മൌലവി
24. A casual survey of the books searched and seized by the investigating officer from the hostel room will reveal that the 3rd respondent and Mithula were studying Islam long before their alleged elopement. Those books written by the celebrated authors are available in the market and dwelling upon the various aspects of the religion. The description of those books by the investigating officer would also go to show that those books were being read by Mithula and 3rd respondent and that they were taking down notes of what they studied. Obviously those books were not banned nor they would generate any prejudice against any other religion. Even if those books were assumed to have been supplied by these petitioners it would not indicate any malafide on their part to commit any offence whatsoever. The only reasonable inference that can be drawn from the preservation of books by the 3rd respondent and Mithula is that they were earnestly reading them years before the alleged elopement. These books, are nothing but spiritual and religious treatises authored by eminent scholars and philosophers. None of those books are obnoxious, blasphemous or offensive to the religious sentiments of any person.
25. It is submitted that neither the allegations in the FI statement, other statements of any witnesses or the meterials seized or the additional report filed will hint that the petitioners have committed the offences under section 120B , 295A, and 377 I.P.C . The imputation of unnatural offence hurled against the petitioners by the investigating officer is most uncharitable, reprehensible and defamatory not only to the Petitioners but also to the innocent spouses of the petitioners. The remorseless imputation of sexual perversity invented by the investigation officer without an iota of materials is a gross affront to the honor of womanhood.
26. Petitioner submitted a representation to the Government complaining about the 1st respondent and the investigation that had made in the crime. In the said representation petitioners have pointed out that there is a concerted attempt to book the petitioners in false case at the behest of the police officers having family relations with Bino Jacob and Mithula and the 1st respondent and there is no investigation to matters which will disclose the true affairs. A true copy of the petition without its enclosures addressed to the Chief Minister, the Home Minister, the Chief Secretary and the Secretary, Department of Home is produced herewith and marked for reference as Annexure.A16.
27. A scrutiny and analysis of the allegations incorporated in the FIR, FI statement and mahzer shows that ingredients of offences alleged are not made out. Therefore, on the basis of the averments and allegations incorporated, the case will not lie.When the documents of unimpeachable character is taken into consideration for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused , it will lead in to an unresisteble conclution that the continuance of the criminal proceedings would amount to an abuse of the process of Court and allowing investigation will only serve one purpose namely to harass the petitioners. Further prosecution is unlikely to succeed in matter having regard to the facts of the case in hand. The parameters required to exercise of inherent power under Section 482 of the Code as laid down in State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp. (1) SCC 335) is therefore clearly made out.
The investigation in pursuance to the Crime registered is therefore a gross abuse of the process of the court and the petitioners having left with no other alternative effective remedy invoke the inherent jurisdiction of this Hon’ble Court under Section 482 of the Crl Procedure Code on the following among other.
G R O U N D S
A. The proceedings in pursuance of Crime No. 1102/09 of Tripunithura Hill Palace Police Station on the basis of Annexure No. 1 “missing report” registered by the police and magnified by Annexure A 2 report of the investigating officer charging the petitioners with offences under Section 295A and 377 IPC is patently illegal ,arbitrary and capricious and violative of all norms of decency and fair play. It is submitted that Annexure A 2 report submitted by the investigating officer before the Additional Chief Judicial Magistrate Ernakulam is a grotesque product of the fertile imagination of the 1st respondent which is too perverse even to be touched with a barged pole by a court of justice.
B. The orders dated 21.8.2009, 26.8.2009, 8.9.2009 and 30.9.2009 are produced herewith and marked for reference as Annexure A13(a), (b), (c) and (d) respectively. These orders of the Division Bench of Hon’ble High Court in Habeas Corpus petition will falsify the allegation that the petitioners committed the offences under Section 295 A and 377 IPC.
C. It is respectfully submit that in the light of land mark ruling of Hon’ble Supreme Court in Latha Singh Vs State of UP and another reported in 2006-SCC-475 the complaint not only deserve to be thrown over board but warrants exemplary penal action against those who are responsible for it.
D. Essential ingredients of unnatural offences or the deliberate condemnation of other religions and criminal conspiracy for the commission of the alleged offences are totally absent in the allegations.
E. In light of the voluntary statement of the 3rd respondent and Mithula before the Division Bench of Hon’ble High Court as well as the email and SMS messages send by Mithula and Bino Jacob , it is crystal clear that investigation is a gross abuse of the process of law which would tend to blight the career of the innocent petitioners and their beloved spouses.
Hon’ble Supreme Court in the ruling “Latha Sing Vs. State of UP and another” reported in 2006-SCC-465 frowned upon the evil tendency of the parents disgruntled by the intercaste and interreligious love marriages of their daughters to wean them out or punish them with false criminal complaints. In the said case the brothers of Latha Singh, Ajay Pratab Singh, Soshi Prathab Singh and Anand Prathab Singh who grew furious about the intercaste marriage undergone by Latha Singh, lodged false complaint against the relatives of her fiancée, trespassed into his land, and spoiled their crops . Latha Singh apprehended the danger to her life and the lives of her husband and small child because her brother assaulted, insulted and threatened to kill them. In para 14 of the judgment the Hon’ble Supreme Court observed as follows:
“This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was, at all relevant time a major. Hence she is free to marry any one she likes or live with any one she like. There is no bar to an intercaste marriage under Hindu Marriage Act or any other law.”
In para 15 of the judgment the Hon’ble Supreme Court emphasized that no offence was committed by any of the accused and that the whole criminal case in question is an abuse of process of court as well as the administrative machinery. The Hon;ble Supreme Court was “distressed to note that instead of taking action against the petitioner’s brothers for the unlawful and high handed act, (details of which have been set out above) the police instead, proceeded against the petitioner’s husband and relatives.”
In para 16 of the judgment the Hon’ble Supreme Court deplored as follows:
“Since several such instances are coming to our knowledge of harassment, threat, violence of young man and women who marry out side their case, we feel it necessary to make some general comments on the matter.”
In para 17 the Hon’ble Supreme Court exhorted the police and concerned administrative wing of the government.
“This is a free democratic country and once a person became major he or she can marry whomsoever he or she likes. If the parents of the boy or the girl do not approve of such intercaste or interreligious marriage, the maximum, they can do is that they can cut off social relation with their son or daughter. They cannot give threats or commit or instigate acts or violence and cannot harass a person who undergoes such intercaste or interreligious marriage. We therefore direct that the administration or police authorities through out the country will see to it that if any boy or girl who is a major undergoes intercaste or interreligious marriage with a woman or man who is a major, the couple is not harassed by any one nor subjected to any threat or action of violence and anyone who gives such threat, harasses or commits acts of violence either by himself or at his instigation is taken to task by instituting criminal proceedings by the police against such person and further stern action is taken against such person as provided by law.”
It is respectfully submitted that the mandate in the ruling is squarely applicable to the present case of the petitioners. Admittedly the petitioners as well as the alleged victims are educated, enlightened majors. The victims have no case before the Hon’ble Division Bench in the Writ Petition or before police who registered the crime that they were trapped into the fraudulent marriage by the petitioners with any evil motive. Obviously the 1st respondent would have concocted certain statement under Section 161 Cr.P.C. and foisted a false case of grave crimes under Section 377 and 295A of IPC to sustain the charge. One must be incredibly too credulous to believe such a cock and bull story that the alleged victims who were proved to have been in love with the petitioners long before the alleged complaints and who were kept in wrongful confinement by their parents before the alleged elopement and who continued to correspond with petitioners through internet and mobile phone whenever possible and escaped from the wrongful custody of their parents for leading a Muslim way of life and solemnizing their marriage, and living together for several days with petitioners as husband and wife , had complained of having been subjected to unnatural sexual intercourse as defined under Section 377 IPC. It is nothing but a ridiculous exercise in futility for the police to prove what is improbable. Equally absurd crusade against commonsense is that the alleged victims who embraced Islam decided to choose an Islamic way of life performing regular prayers according to Islam would complaint to the investigating officer that the petitioner insulted their forsaken religion.
F. It is more unfortunate that the Hon’ble Single Judge readily accepted and acted upon the false report of the police and directed the same police to make a roving Global enquiry into whether the intercaste marriage of the petitioners was for proselytization of the alleged victims into Islam and for engaging them into grave antinational offences like, counterfeiting, drug trafficking and terrorist action etc.
G. It is respectfully submitted that the Frontline well known India’s National Magazine narrated the origin and impact of the ugly phrase “Love Jihad” or “Romeo Jihad” misused by ruthless fenatists .The photocopy of the above article published in Frontline dated 20-11-2009 is produced and marked as Annexure No……..In the above Article frontline tried to trace the disgraceful origin and transmission of the ugly usage of “Love Jihad”:
“Many of the allegation of love jihad by rightwing organization have come from Dhakshina Kannada District which is well known as the laboratory of Hindutuva of the state”
“The student wing of Bharatiya Janata Party (BJP) Akhila Bharatiya Vidyarthy Parishath (ABVP) has been particularly active in the moral policing restricting the social space for meeting of the student from different community even from class rooms”.
“The allegation of love jihad in the region is not of recent origin only, the phrase is new and has caught on very fast. It was first used by a Kannada evening tabloid on September 7 while reporting on certain incidents in northern Kerala and linking them up with the incidents in Dhakshina Karnataka.”
For the foregoing reasons it is respectfully prayed that the Hon’ble High Court may be pleased to quash the investigation into the crime alleged against the petitioners in Annexure A1 to A3 and allow the Criminal M.C.
Dated this the 24th day of November, 2009.
Counsel for the Petitioners
Adv.P.K.Ibrahim
