The controversial conviction of a Muslim man by an Uttar Pradesh court, which claimed that his marriage to a Hindu woman was a case of “love jihad”, is bad in law and likely to be set aside on appeal, legal experts have said.
“Love jihad” is a Hindutva conspiracy theory that Muslim men are waging a campaign to lure Hindu women into marriage in order to convert them to Islam.
On September 30, sessions judge Ravi Kumar Diwakar found 26-year old Mohammad Aalim guilty of raping a 23-year old woman several times and sentenced him to life imprisonment. Aalim was also fined Rs 1 lakh. Section 376(2)(n) of the Indian Penal Code prescribes imprisonment for life – defined as “imprisonment for the remainder of that person’s natural life” – as the maximum punishment for repeatedly raping the same woman.
Aalim’s father was given a two-year jail sentence.
“The primary aim of ‘love jihad' is to alter demographics and stir international tensions, driven by radical factions within a religious group,” the judge said. “Essentially, it refers to the deceptive conversion of non-Muslim women to Islam through fraudulent marriages.”
The court pronounced the harsh sentence despite the complainant rescinding her testimonty. She told the court that she had filed the case under pressure from Hindutva groups and her parents. Since the testimony of the victim is the most crucial piece of evidence in a rape trial, this admission should have led to Aalim being acquitted, legal experts told Scroll.
They also noted that the judge’s gratuitous reference to the “love jihad” conspiracy theory was judicially inappropriate.
What happened in the case
The complainant filed a first information report against Aalim in May last year alleging that he had introduced himself to her in 2022 as a Hindu. She claimed that they had had entered a sham marriage in a temple in Bareilly in March that year.
According to the first information report, Aalim went on to rape her on several occasions. He took explicit photos and videos of her without her consent and blackmailed her into silence about the abuse, the report claimed.
The complainant alleged that Aalim and his family forced her to have an abortion and attempted to pressure her into converting to Islam in order to formally marry Aalim.
The complainant reiterated these allegations during the trial before the court in July.
However, in September, she told the court that she had been pressurised to file the complaint against Aalim by her parents and some Hindutva organisations. She added that Aalim had never tried to conceal his religious identity from her.
But the judge disregarded this. He stated that the complainant had been coerced by Aalim through the explicit photos and videos of hers that he possessed. However, these alleged photos and videos were not presented as evidence nor was their existence established. The judge declined to consider this fact: he said that Aalim could not be allowed to benefit from a deficiency in the prosecution.
Violation of legal principles
It is a foundational principle of criminal law that in order to convict someone of an offence, their guilt must be proven in court beyond reasonable doubt. Legal experts told Scroll that the court deviated from the principle in this case.
“The victim’s testimony is the most important evidence in a rape case,” said Mumbai-based senior advocate and former Rajya Sabha MP Majeed Memon. “The court could not have disregarded it.”
Arvind Verma, Professor of Criminal Justice at Indiana University, Bloomington in the United States and a former Indian Police Service officer, described this as a “blatant misapplication of law”. “When the complainant says the case was forced, the judge should have released the accused,” he said.
Menon said that “once the complainant said that the complaint is false, the case falls flat on the ground”. Any sensible judge, he added, would have stopped the trial at that stage.
Experts were also concerned by the judge giving Aalim the maximum possible sentence for the offence despite having to rely on limited evidence.
“It is deeply troubling that a court can impose a life sentence – the maximum permissible punishment – in a case of rape, especially when the complainant has retracted her statement against the accused,” said Naveed Mehmood Ahmad, Senior Resident Fellow and the Crime and Punishment Team Lead at the Vidhi Centre for Legal Policy, a legal think tank.
He said that if the victim herself asserts that her earlier statement was made under coercion and that she had been forced to implicate the accused, “such evidence cannot inspire confidence”.
That view was reiterated by Ayushi Sharma, Senior Resident Fellow at Vidhi and a research scholar at the National Law Institute University, Bhopal. “The court should have taken more time and care in reaching its verdict, particularly given the severe punishment it imposed and the complainant’s retraction and claims of coercion by parents and Hindu organisations,” she said.
Sharma pointed out that the complainant’s medical report in the case was too inconclusive to establish rape. The other evidence also seemed too insufficient to prove guilt beyond reasonable doubt.
Said Memon, “I have no doubt that the conviction will be set aside on appeal.”
On love jihad
The court order was prominently reported because of the judge’s remarks about “love jihad”. The home ministry has told Parliament that Indian law has no provision defining such this term.
Describing the case an example of “love jihad”, Diwakar in his order said that it was possible that love jihad in this case had been funded by foreign sources. He asked how the complainant was able to afford to live away from her parents in rented accommodation, to fund her daily expenses and to use a phone with an Android operating system.
However, Diwakar did not refer to any evidence in the case of illicit money, either from abroad or from within the country, being circulated.
Diwakar’s order said that considering the serious nature of the offence, the maximum sentence should be awarded to send a strong signal to society and deter such crimes. He referred to “love jihad” as an element that made the crime so serious.
The reference to the complainant’s living arrangements and her Android phone to conclude that she was being paid off by Aalim for “love jihad” and illegal conversion was utterly misplaced, said Sharma, from Vidhi.
Ahmad agreed. The court’s remarks on interfaith relationships, a demographic war and conspiracy theories “raise serious concerns about the judiciary’s inability to distance itself from political discourse and its deviation from the core judicial duty of assessing guilt based solely on evidence”, he said.
Verma was more blunt in his assessment. “It seems that judiciary is influenced by politics rather than law,” he said.
