The Real Problem With The Moradabad ‘Love Jihad’ Case Is Not Complaint By Woman’s Parents But Police’s Handling Of It

Before the new law against forced conversions was promulgated in Uttar Pradesh on 28 November, this is what parents of a missing daughter suspected to have eloped with a man of another religion were expected to do: to register a complaint with the police that their daughter is missing and has possibly been kidnapped by the man.

The police would book the man under IPC section 366 (abducting or inducing women to compel her marriage) and begin to track him down.

Once found, he and the woman would be taken in police custody.

The police would record her statement under Section 161 of the Code of Criminal Procedure (CrPC). If she gave a statement in favour of the man, she would be allowed to go with him. The police would proceed to close the case.

If she gave a statement against the man, accusing him of forcefully taking her or raping her in confinement, the police would proceed with the charges against the man.

If the woman said she wanted to live with her parents, she would be allowed to go with them.

For the past several years, the police have been additionally getting the woman’s statement recorded in front of a judicial magistrate under Section 164 of the CrPC before proceeding with the formalities.

Readers may recall here a recent case in Hyderabad where the police failed to act in time on a complaint by the parents of a woman who had gone missing.

The police reportedly told the parents that she must have eloped with her lover.

The next morning, the woman‘s charred body was found on a deserted road. The woman, Priyanka Reddy, had faced gang-rape and brutal torture before her death.

In this case, the police were accused of ignoring the parents’ complaint and hence held responsible for her death; ironically by many from the same group that is today accusing parents of Pinky for complaining to the police. They are also accusing the chief minister of Uttar Pradesh, Yogi Adityanath, of taking up the parents’ complaint.

What has changed under the new law?

Since the new law came into effect, the police have been booking the accused under the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, if parents of a daughter said in their complaint that the accused man is trying to forcibly convert their daughter into another religion.

The rest of the police procedure remains the same as in the cases filed for kidnapping.

The new law deals specifically with cases that involve interfaith couples, particularly cases of Hindu woman and Muslim man as Muslim personal law requires the woman to convert to Islam in order to marry the man.

What went wrong in the Moradabad case

In the Moradabad case reported by this correspondent here, mother of a 22-year-old Dalit woman named Pinky gave a complaint to the Kanth police station in Moradabad district on 5 December against Rashid.

The statement by the mother, who is a resident of Bijnor district, said that Rashid ‘lured’ Pinky to go with him to a maulvi with a motive of conversion. He made her wear a burqa.

The police booked Rashid and his brother Saleem under Section 3 (prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage) and Section 5 (1) (punishment clause) of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

The police took Rashid, Saleem and Pinky under custody on 5 December itself. The men were produced before a magistrate and sent to judicial remand for 14 days. The woman was sent to a government shelter home.

Here’s where the case went wrong: The police recorded the woman’s statement before a magistrate only on 14 December, that is, nine days after taking her into custody. The police should have done it within a day.

As per reports, the police delayed recording of the woman’s statement because of “busy schedule”. Perhaps the police would have further delayed it, had it not been for a controversy over the woman’s miscarriage during her stay at shelter home.

In her statement, the woman said that she was an adult and had married Rashid in July in Dehradun consensually. Shortly after, she was allowed to go to her in-laws’ house, and Rashid and Saleem were released.

If the police had recorded her statement in time, the three would have been released form custody with immediate effect.

Does the Moradabad case prove that the new law is a tool for harassment of interfaith couples?

The new law is as much a tool for harassment of interfaith couples as any of the existing laws can be claimed to be tools for harassment to any of us because they have been amended from time to time to fill gaps.

If the new law had not come into effect, the police would have still booked Rashid for kidnapping or related charges on complaint by the parents. It’s quite possible that the police would have still delayed recording the woman’s statement, forcing her and Rashid and Saleem in confinement.

There have been many cases in the past where the man has remained in jail for several days only because the police failed to record the woman’s statement in time. Many of these cases involve inter-caste Hindu couples and even Hindu couples from the same caste.

There have also been cases where the woman has remained in a shelter home despite giving a statement in favour of the parents, only because the police failed to follow due procedure in time.

Is it harassment if parents file any kind of police case against the man? Does it take away the woman’s agency to choose her partner as being claimed in articles such as this Indian Express column?

This argument essentially suggests that if parents find their (adult) daughter missing, they should not make any effort to find her.

Let’s assume a situation where the daughter goes missing one day and leaves a note that she has eloped with a man as she knows that her parents won’t agree to their marriage.

What if the note has been dropped by her kidnapper so that parents don’t go to the police?

Let’s assume another situation where the daughter goes missing one day, and parents hear from neighbours that they saw her going with a man.

What if the man has taken her away on gunpoint?

Let’s assume yet another situation where the daughter goes missing one day, and leaves a text message that she is eloping out of her own free will.

What if the text message has actually been sent by her kidnapper using her phone?

A note or a text message is not a legal statement of ‘free will’. However, a statement in front of the magistrate is.

It’s thus not only a moral duty of the parents to go to the police with a complaint, but it also becomes mandatory as a cushion against problems that may arise in future.

What if the woman is found dead and police find out that her parents did not even give a missing person’s complaint? That would make even the parents come under the scanner.

The police officer we spoke to, said that while parents can simply give a missing person’s complaint (in which case the police do not file an FIR but makes a general diary entry), the police usually file an FIR due to increasing sensitisation on women-related crimes. In inter-faith or inter-caste elopings, the police tread more carefully as passions are high.

There have been many cases where the parents do not file a case against the man when they find that their daughter has eloped with him. Take the infamous Ekta Jaswal-Mohammed Saqib case in Uttar Pradesh’s Meerut district, for instance.

Ekta, a resident of Ludhiana in Punjab, eloped with Saqib when her parents did not approve of the relationship. The parents, however, did not press charges against Saqib.

After she moved out of her parents’ house, Ekta went to Meerut and had a nikah with Saqib. However, Saqib, along with his family, looted the cash she had brought with her, and killed her.

They chopped Ekta into pieces and buried her in a field. Villagers found the body after they saw a stray dog with a piece of human flesh.

It took the police a year to identify the body as Ekta’s. They arrested Saqib and his family in June, and charged them with murder.

Read Swarajya’s report on the case here.