The Gujarat High Court, while granting bail to four accused as interim relief in relation to a petition jointly moved by the complainant and the accused persons for the consensual quashing of the first FIR lodged under the Gujarat Freedom of Religion (Amendment) Act, 2021, referred to an August order of a division bench that stayed the operation of several sections of the amended Act.

The court also referred to a Supreme Court observation on the necessity of high courts exercising powers under the Constitution.

The reasoned order made public on Thursday referred to the decision in the case of Arnab Manoranjan Goswami versus State of Maharashtra and others that “High Court must exercise its power under Article 226 of the Constitution of India to grant interim bail with caution and circumspection, cognisant of the fact”.

“In light of the aforesaid law laid down by the Apex Court and considering the peculiar facts and circumstances of the case, more particularly, the settlement arrived at between the husband and wife…, the petitioners have made out a prima-facie case for interim relief in the nature of bail..,” the court of Justice Ilesh Vora noted. The accused will be released on execution of personal bond of Rs 10,000 each.

The FIR was lodged at Gotri police station in Vadodara two days after an amendment to the Gujarat Freedom of Religion Act of 2003 came into force on June 15. The accused were booked under the provisions of the IPC, the amended Gujarat Freedom of Religion Act and Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act.

The accused included the complainant woman’s husband, parents-in-law, sister-in-law, husband’s uncle, a cousin and a maulvi who solemnised the nikah. While the parents-in-law and sister-in-law were granted bail earlier, the husband, his uncle and cousin and the maulvi continued to be in judicial custody, nearly four months after their arrest.

Another woman, who was accused of conspiring to house the couple at her residence, was also protected from arrest by the court.
Two petitions were moved before the HC, seeking quashing of the FIR, with one petition comprising the complainant woman and the seven other accused as petitioners, represented by advocate Muhammad Isa Hakim, and the second petition moved by the woman friend of the accused couple, represented by advocate Hitesh Gupta.

As recorded in the court’s order, the couple came to know of each other through social media in 2019. “…On account of their intimate relationship, they became aware about each other’s identity, character, family details and each other’s religion,” the court records.

The couple agreed to marry each other under the Special Marriage Act by following their respective religions, prior to which they married by way of ‘nikahnama’ in the presence of their parents and family members. They also declared their marriage on oath through an affidavit stating that the “marriage was without any force or coercion and out of their free will”.

“Subsequently, due to some petty and trivial… issues between accused no.1 (husband of the complainant) and the informant, the informant… went to (her) parental home. On 17.06.2021, the impugned FIR came to be registered with Gotri police station, Vadodara, alleging that the accused made forcible sexual intercourse, taking obscene photographs of the informant, causing forcible miscarriage… compelled to forcibly convert her religion and used casteist slurs. She also alleged that there was a conspiracy among the accused to commit the offences,” the order records.

The petitioners jointly sought consent quashing of the FIR mainly on the ground that issues between husband and wife were “petty and trivial… which have been resolved and… they wanted to continue their matrimonial and marital relationship”.

The petitioners also submitted that in view of settlement between the couple, the petitioners “have a good prima-facie case and therefore, if the interim relief for bail as prayed for, is not granted, then, they shall suffer irreparable loss and injury by deprivation of their personal liberties…”. The court has now kept the petition for November 29 for further hearing on whether the FIR should be quashed or not.

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By Wyatt

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