This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she describes the principle of secularism and the extent of judicial power in relation to the conversion of marriage with the support of relevant provisions and case laws.

Introduction

India is a secular country and the Constitution of India guarantees the freedom of conscience and religion to people of all denominations. In India, a person is free to profess any faith or convert to another religion of his or her faith. However, in the present day, there are laws initiated by the state barring marriage through religious conversion which goes against the core principle of secularism. It is also essential to note that in the matter of any legislation on the conversion of marriage and acceptability of conversion marriage in relation to the personal laws or the municipal laws, the judiciary has no power to interfere unless it is of critical aspect envisaged in Article 21 of the Constitution of India.

Meaning of the term conversion for marriage

The word ‘convert’ is often misplaced in the context of the choice of marriage or for the purpose of marriage. Conversion for marriage takes place when an individual willingly ‘adopts’ another religion for the purpose of marrying a person from a different religion under any religion’s personal law. Article 25 of the Constitution states that every individual has the freedom of conscience and freedom to profess, practise, and propagate their religion. It is essential to note that the freedom of conscience and religion is something that an individual chooses for himself or herself. This provision states the essence of secularism. However, it has been noticed that conversion or interfaith marriage is not socially accepted by the patriarchal mindset of society. In the case of Rev. Stanislaus v. State of Madhya Pradesh, (1977), the Supreme Court was not justified in observing the case and stating that the right to propagate religion does not include the right to convert. However, every individual has the right to adopt another religion but in the case of Smt. Sarla Mudgal and Others. v. Union of India, (1995), the Supreme Court declared conversion for marriage to be unconstitutional. The reason for the adoption of religion for the sole purpose of avoiding the wife or marrying multiple wives was not held to be a valid purpose. In a similar case of the Noor Jahan Begum v. State of Uttar Pradesh, (2014) the Allahabad High Court dismissed the writ petition filed by the couple seeking police protection and stated that the conversion from Hinduism to Islam was solely for the purpose of marriage, without any knowledge or belief about the religion is not a good law.

Secularism and marriage

India is a secular country and it maintains separate personal laws in matters of marriage, divorce, succession to property, child custody or adoption. The following are the personal laws governing marriages in India as below-mentioned:

• The Special Marriage Act, 1954
• The Hindu Marriage Act, 1955
• Muslim Personal Law, 1937
• The Indian Christian Marriage Act, 1872
• Parsi Marriage and Divorce Act, 1936.

Case analysis of Shafin Jahan v. Ashokan KM (2018)

Further, in recent times the enactment of specific laws in the matters of marriages have been targeted by society. In the case of Shafin Jahan v. Ashokan KM, (2018), the Supreme Court declared that Hadiya has the freedom to convert to another religion and marry the person of her choice.

Facts

The father of Hadiya, a former Hindu who converted to Islam and married a Muslim, was concerned or under the perception that there has been a violation of his right to protect the interest of his daughter alleging that Hadiya may have been subjected to forced conversion and transported out of the country. Hence, the father filed a writ application in the nature of Habeas Corpus under Article 226 of the Constitution of India.

Issues

1. Whether the High Court has jurisdiction under Article 226 of the Constitution of India or not?
2. Whether there is any violation of the fundamental right of the father or the daughter, Hadiya in this said case?

Judgment

The High Court after observing the facts and circumstances of the case stated that there was no part of the jurisdiction to decide what is just and correct course of living for Hadiya who is an adult. She has absolute autonomy over her choice to marry. Considering her appearance and statement before the High Court, the Court held that she was not under illegal confinement or subject to any forced conversion. In this particular case, there was no need for the Court to exercise the writ of habeas corpus. The Court emphasised social radicalization and certain other aspects where the judiciary cannot interfere. Also, if there is any criminality in any sphere, it is the duty of the law enforcement agency to interfere and perform the needful. The Court can only interfere if there is any violation of the fundamental right. Since the marriage was valid as per the Muslim law and to exercise the jurisdiction to declare the marriage null and void was plainly in excess of the judicial power.

Views of the international convention in relation to the right to marry

Article 8 of the European Convention on Human Rights (ECHR) states that any interference with the right to respect for an individual’s private or family life is justified in order to protect his or her health or to protect his or her right to enjoy. The individual is free to choose his or her partner without the undue influence of a third party. Also, any order made by the Court in a particular case should be made to protect their rights and not to curtail them unnecessarily. Hence, it is the essence of humanity that adults are entitled to their private space, and Human Rights (UDHR) focuses on the fundamental importance of marriage as an incident of unorthodoxness while making their choice. Similarly, Article 16 of the Universal Declaration of Human Liberty states that both adult men and women are entitled to equal rights as to marriage, during the marriage and its dissolution. The choice should be devoid of any restriction in relation to their race, nationality, religion, marriage and form a family. The family is the fundamental group of society and it should be entitled to protection by society and the State.

Further, the International Convention is in line with the right to marry a person of one’s choice as envisaged under Article 21. It also states that this right cannot be taken away by anyone except through the law. The intrinsic value of liberty as guaranteed by the Constitution means the ability of each individual to make decisions on matters central to one’s happiness. The matters of belief and faith are the core of constitutional liberty. Thus, the Constitution protects the individual’s way of life or faith to which one seeks to adopt.

Case analysis of Palash Sarkar v. The State of West Bengal & Ors. (2021)

In the case of Palash Sarkar v. The State of West Bengal & Ors. (2021), the two-judge bench consisting of Hon’ble Chief Justice Thottahil B. Radhakrishnan and Hon’ble Justice Arjit Banerjee of the High Court of Calcutta stated that where there is no state legislation controlling, regulating the complexities such as religious conversion or conversion for marriage, the judiciary cannot come forward with to put regulatory measure in order. The judicial power of the Courts can merely examine the existing legislation concerning marriage or conversion, but it cannot interfere in the law-making process of the legislation and the executive.

Facts

The facts of the case were that the petitioner’s daughter, aged 19, married the respondent out of her own choice and did not want to return to her parental home thereafter. According to the police report under Section 164 of the Code of Criminal Procedure,1973 (CrPC) before the Judicial Magistrate, the statement mentioned by the petitioner’s daughter was that she had a relationship with the respondent and had willingly, without any influence, married out of her own choice. The petitioner apprehended that her daughter’s statement had been rendered in an unsafe environment and was coerced or unduly influenced into making those statements. Hence, the petitioner filed this petition calling for the Court to interfere in this particular matter which was of a grave nature.

Issue

Whether the judiciary has the power to inference in the law-making process of legislation or not?

Judgment

After considering the facts and circumstances of the case, the Court illustrated the “Doctrine of Pith and Substance” and observed that all the issues in consideration of the religious conversion and acceptability of marriage in relation to the personal laws or the municipal laws are matter on which the judiciary has no power to interfere. It also stated that the case is not where the most essential right of Article 21 of the Constitution of India may be invoked in order to exercise on the premise that there is no legislation to consider the said matter. The judicial power is limited to the validity, enforceability, or any other matter of law which is made by any legislative body, but it cannot state any regulatory measure in the absence of law. 

Further, the Court also mentioned an important aspect of the case that the lady did not appear to be coerced or under any undue influence while making any statement. It is the fundamental right of the adult to marry as per her own choice and decide to convert and not return to her parental house and in such circumstances, there can be no interference by the Court. Hence, the writ petition was dismissed by the Court.

Meaning of the term anti-conversion laws

The anti-conversion laws highlight specific aspects of the acts which are in violation of the secular principle of this nation. Anti-conversion laws are introduced by the states in the name of freedom of religion stating the primary objective as to be the prevention of forceful conversions. Since there is no central legislation addressing the issue of conversion, the only restrictions on the right are envisaged in Article 25 on the grounds of public order, health, morality, and public peace. However, over time, it has been noticed that the particular clauses across such state legislations are against the values of secularism and fail to recognise the intrinsic value of the individual to freely choose their religion and adopt another religion. For instance, in some states’ religious laws, conversion on marriage or marriage on conversion is prohibitory. Section 6 of the Uttarakhand Freedom of Religion Act, 2018 states that any marriage done for the sole purpose of conversion may be declared null and void by the Family Court. Similarly, Section 5 of the Himachal Pradesh Freedom of Religion Act, 2019 states the sole purpose of conversion for marriage by the individual to be null and void by the Family Court. The Madhya Pradesh Freedom to Religion Bill, 2020 also states an anti-conversion law that outlaws religious conversion for the purpose of marriage and declares it to be null and void. Lastly, Section 6 of the Uttar Pradesh Ordinance states that any marriage done for the sole purpose of unlawful conversion by an individual to another religion shall be declared null and void by the courts. Hence, these laws make all marriages of conversion unlawful thereby putting an end to interfaith marriages under personal laws.

Conclusion

The judiciary has no power to interfere in the law-making process in relation to matters of conversion of marriage unless the validity or acceptability of the law is in consideration. The strength of our Constitution lies in the acceptance of the diversity of culture and religion. Society has no role to play in determining the choice of one’s partners. Matters of intimacies of marriage including the individual’s choices whether to marry and on whom to marry lie outside the control of the state. The recent ordinances and state laws do not only violate the right to religion but also put an end to all interfaith marriages under personal law. Hence, it is the duty of the Courts to uphold Constitutional freedom and safeguard individual freedom.

References

• https://www.livelaw.in/pdf_upload/conversion-for-marriage-calcutta-hc-390558.pdf.
• https://images.assettype.com/barandbench/2020-12/0677fdd6-d0ec-4cad-ad87-e6f0700f38e5/Calcutta_High_Court_order___December_21__2020.pdf.
• https://www.echr.coe.int/documents/guide_art_8_eng.pdf.
• https://www.theleaflet.in/can-the-state-dictate-what-religion-you-will-follow-and-who-you-will-marry-love-jihad/.

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