Shahan Sha vs. State of Kerala[1] was a case in which an application was filed for anticipatory bail by Shahan Sha and Sirajuddin under section 438[2]. Both accused are being alleged against (Section 120-B, 295-A, 377, and Section 34)[3]. Although the case was not on trend like others the recent movie "The Kerala Story" against which many petitions were filed in the Supreme Court of India, made this case again in the limelight because this was the first case where the word "love jihad" was used in the legal field of the republic of India.

Fact Of The Case

• A Hindu girl was compelled to fall in love with Shahan Sha, a senior Muslim student at the college for an MBA course. It is reported that Shahan Sha was reported to speak against the Hindu religion and deity. Shahan and his mother were reported to teach the customs and traditions of the Muslim religion to the Hindu girl and were constantly compelled to convert to Islam for the sake of their relationship. Due to the persuasion of Shahan and his mother the Hindu girl was ready for conversion into Islam. Shahan had tried various times for sexual intercourse but was not successful during the relationship.
   
• Shaji who used to run a D.T.C. shop also persuaded the Hindu girl to convert to Islam and a plan was made. As per the plan, the Hindu girl was ready to follow it. So, they came out of the home at 3 a.m. on 18.7.2009.
   
• Similarly, a Christian girl also came and brought in a house of activists of the popular front. After bringing them to the house they were directed to call their parents and inform them about their plan to convert to Islam from a different place to avoid the ascertainment of their actual location. During their stay, they were regularly visited by the so-called activists of the popular front. It is found that the Christian girl was not in love with anyone.
   
• At last, the girl came to know that the whole plan was to take them to Bengaluru and give them in marriage to someone else. so, Sirajuddin, a friend of Shahan Sha was brought to the scene and is also a K.S.R.T.C. Both the Hindu and Muslim girl were brought to an advocate's office at Calicut on 12.08.2009.
   
• Two agreements were signed. First, between Shahan Sha and a Hindu girl and the second was between Sirajuddin and the Christian girl then they were brought to the haji's house and during that period the Christian girl was subjected to unnatural sex and it is alleged that an offense under section 377[4] was committed Meanwhile the parents of the missing girl filed the habeas corpus petition.

Legal Provision

• Section 438 of the Code of Criminal Procedure 1973[5]: the section gives the direction for the grant of bail to a person apprehending arrest.
   
• Section 120-B of the Penal Code 1860[6]: contains the provisions of punishment for criminal conspiracy. As per this Section, the criminal conspirator can be imprisoned for life or rigorous punishment of two years or upward.
   
• Section 295-A of the Penal Code 1860[7]: empowers to punishment accused who has deliberately insulted the religious belief of any class and outrages the religious feeling of any class, to be punished with imprisonment which can be extended to four years, or a fine, or both.
   
• Section 377 of the penal code 1860[8]: whoever has voluntarily intercourse with men women and animals against the order of nature shall be punished with imprisonment which can be extended to ten years and also be liable for a fine.
   
• Section 34 of the penal code, 1860[9]: the act emphasizes the punishment for a person who has done a criminal act with several persons in common intention. As per the act, each person will be liable for that act in the same manner as if it were done alone.
   
• Article 25 of the Indian constitution[10]: This article of the Indian constitution gives an individual the right of freedom of conscience, and the freedom to profess, practice, and propagate religion to all citizens with an exception.

Court's Proceeding
During the proceeding of the court, Shahan Sha and Sirajuddin appeared before the court. Initially, the girl was not ready to go with their parents but after the court persuasion, they agreed to go with their parents. The case dairy has further exposed that the girl converted to Islam by compulsion and the girl was also directed not to expose the involvement of the popular front.

It is further stated that a movement called Romeo Jihad and Love Jihad whose main idea is to convert non-Muslims to Islam especially the Hindus on a mass scale. Before proceeding further, the court has directed the director general of police to file a statement within three weeks on this question of "whether the movement of Romeo jihad or love jihad exists" and the high court has also directed the central government agencies to give their views on that question.

The D.G.P. of Kerala has submitted a negative report and stated that there is no evidence of movement called Romeo jihad and love jihad exist in Kerala but the last of the 18th report[11] has stated that the student wing of N.D.F. and P.F.I. which is called the campus front is reported to promote religious conversion in the educational institution. The report also mentioned the involvement of the Muslim youth forum among others whose financial assistance is coming directly from the Arabic Gulf country Saudi Arabia and as per the statistics, more than 3000 religious conversions have taken place in the last four years in Kerala[12]. (the reported one)

The Judgement
It was held that Article 25 of the Indian constitution gives the right to profess, practice, and propagate one religion where Propagation is concerned to expand the religion's belief, but it does not include a right to forceful conversion. The court has further held that the parent's right to bring up their children cannot be lost because a boy or girl has become major.

It does not mean that the parents have no right to say in the matter of their children's future after the children have become major. The parents are entitled to protect their children. The stranger cannot deny the rights of the parents of the children, as the court interpreted the meaning of Article 25 of the constitution. The article is aimed to protect individual freedom, not to destroy the family setup and culture of our country.

The discretionary relief under Section 438 of the Code of Criminal Procedure in the favor of petitioner was declined by the court after Considering the facts of the case and the nature and gravity of the offense alleged against the petitioners. The discretionary relief under Section 438[13] is not given. For the aforesaid reasons, the Bail Applications are dismissed.

Conclusion
It can be concluded that everyone has the fundamental right to follow their religion and propagate but not at the behest of the other's fundamental right. One cannot force others to convert to a particular religion forcefully. The proceeding of the case shows the inefficiency of the police in talking about the forced conversion under the financial assistance of a foreign country.

The court has also reiterated that there is a need of the hour to protect the bitter-caste and inter-religious marriages as the supreme court has also emphasized the same in the case of Lata Singh vs. State of U.P.[14] The court has further held that article 25 has further held that the right to freedom does not include any stranger to deny the right of the parents of the girl's article 25 which is given in the Indian constitution is aimed at setting up the family culture of the country not to destroy it.

End-Notes:

1. 2009 SCC Online Ker 6623
2. Criminal Procedure Code 1973
3. Indian Penal Code 1860
4. Indian Penal Code 1860
5. The code of criminal procedure https://indiankanoon.org/doc/1783708/ (accessed 4 May 2023)
6. ibid
7. ibid
8. ibid
9. ibid
10. The Indian constitution https://www.constitutionofindia.net/articles/article-25-freedom-of-conscience-and-free-profession-practice-and-propagation-of-religion/ (accessed 4 May 2023)
11. Shahan Sha vs State of Kerala, 2009 SCC Online Ker 6623
12. Shahan Sha vs State of Kerala, 2009 SCC Online Ker 6623
13. Code of Criminal Procedure 1973
14. (2006) 5 SCC 475

Award Winning Article Is Written By: Mr.Harsh Raj

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