This article is written by Priyanshi Soni, a student of Symbiosis Law School, Noida. This article seeks to examine the recent plea filed against the Gujarat Freedom of Religion Act and also discusses the controversy over Love Jihad laws.
Interfaith marriages have been a question of societal non-acceptance for a very long time. But when there is a conversion of religion by the way of marriage, i.e., if the sole purpose of such marriages is conversion, then it is considered illegal as per the laws passed by state governments. Women are the major targets of these. Many states like Uttar Pradesh and Madhya Pradesh, have already passed laws on Love Jihad. Love Jihad is a term that is widely referred to Muslim agendas of trying to convert Hindu girls into Muslims under the guise of love.
Interfaith marriages and the laws
Over the years, there has been a stigma regarding interfaith marriages in India and societies consider it against their social norms, as casteism and regionalism still prevails despite several laws. Recently “Love Jihad” laws were enacted by the government formally to stop these marriages. Interfaith marriages refer to civil marriage between people who practice and profess different religions. Ideally, it is the choice of the people regarding whom they want to marry and whether they want to marry someone of their religion or not, but there are certain issues regarding the same-
- Interfaith marriages are considered to be a forced religious conversion of one spouse and mostly, it is the woman.
- Also, as per the Muslim Personal Law, conversion is the only way to get married to a non-muslim.
- There is no such provision of caste determination for children who are born out of such marriages.
- Another major issue is regarding the validity of Article 226 of the Indian Constitution in the context of annulling the interfaith marriage by the high courts. Lastly, the Special Marriage Act is now considered to be outdated and backward.
The Special Marriage Act
The Special Marriage Act, 1954 deals with inter-caste and inter-religion marriages. Marriages between Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists are all covered under this Act. This statute extends to all Indian states. This Act applies not just to Indian citizens of various classes and religions, but also Indian people living overseas.
The fundamental prerequisite for a lawful marriage under this Act is the consent of both parties to the marriage as if this condition is fulfilled, caste, religion, race, etc., cannot be a barrier to their union in this case. To marry under this Act, the parties must file a notice with the district’s Marriage Registrar of a district, where one of the spouses has been living or has lived (resided) for at least 30 days, but the residing period of 30 days should be before the filing of the notice, indicating their intention to marry each other. The marriage is said to be solemnized after 30 days from the date when such notice was issued. A legitimate marriage also requires the parties to consent to the marriage in front of the marriage officer and three witnesses. These are the fundamental prerequisites for a lawful marriage under the Special Marriage Act.
Conditions for Marriage
Few conditions must be fulfilled to qualify for a lawful marriage under this Act, which are quite similar to the conditions of a simple marriage. These are as follows-
- The minimum age limit for boys/girls to marry is that the bridegroom must be at least 21 years old, and the bride must be at least 18 years old at the time of the wedding.
- At the time of their marriage, both of them should be unmarried without any living spouse.
- They should be mentally sane and fit at the time of marriage.
- They should not be in a prohibited relationship that will make the marriage null and void, such as a blood relationship.
The challenges with the laws for interfaith marriages
Laws regulating marriage ties between two consenting people would not only violate constitutional rights but would also violate the concept of individuality and basic freedoms. Such laws violate one’s choice to marry and thus, in turn, violate the right to equality as per Article 14, right to freedom as per Article 19, right to life and personal liberty as per Article 21, and freedom of religion as per Article 25, which gives individuals the right to freedom to practice any religion, and personal laws of the religions have specified various laws relating to marriage for the followers of that religion. So, interfaith marriages are allowed as per the Constitution and it nowhere declares such marriages as void.
The U.P. Love Jihad law
Even the UP Government passed “Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadesh 2020”, i.e., The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which among other things, declares that a marriage will be considered void if the sole purpose of such marriage is conversion. Also, those found guilty of conversion done through misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means would be punished. Now, in the new law, those who want to convert have to prove that such conversion is not forceful. This law is similar to the current Gujarat Freedom of Religion Act, discussed below.
The Gujarat Freedom of Religion Act
Recently, the Gujarat Freedom of Religion (Amendment) Bill, 2021 was passed by the Gujarat legislature which amended the Gujarat Freedom of Religion Act, 2003 with some stringent provisions against any individual or institution indulging in forcible religious conversion by marriage. Despite a lot of opposition stating this to be a “political agenda”, Governor Acharya Devavrata gave the assent to the Bill. This bill has been passed along the lines of laws passed by the states of Madhya Pradesh and Uttar Pradesh.
The Statement of Objects and Reasons of this Bill states that though there is a trend that promises a better lifestyle in the name of religious conversion, there are many women who are lured to marriage for religious conversion.
The original Act of 2003 provided only two conditions of allurement given during conversion under Section 2 of the Act as-
- Any gift or gratification, either in cash or kind, and
- A grant of any material benefit, monetary or otherwise.
But, in the amended Act, a third condition: “better lifestyle, divine blessings or otherwise” was added. Also, in Section 3, the original act merely outlawed forceful conversion from one religion to another by the use of force, allurement, or fraudulent means; however, the amended Act aims to prohibit acts such as forcible religious conversion through marriage or assisting someone to marry.
Section 3A, which deals with lodging the complaint, states that an aggrieved person, his parents, brother, sister, or any other person related by blood, marriage, or adoption may file an FIR against the individual for an offence committed under this Act with the police station having jurisdiction.
The amendment Bill [Section 5(2)] includes other categories of people as well, who will be regarded to have participated in committing the offence and will be punished as if they actually committed the offence. A person who acts or fails to do any act to assist another person to commit the offence or enable him for the same, or a person who assists, abets, counsels, or induces another person to commit the offence, would be considered such.
The burden of proof is on the person who caused the conversion of other persons and on the second person who assisted it, if at all. This has been mentioned under Section 6A.
The offences under this Act are cognizable and non-bailable and they will be investigated only by an officer who is not below the rank of Deputy Superintendent of Police (Section 7) and the marriages solemnized for the purpose shall be declared void (Section 4B).
The plea challenging the Act
There was a plea filed in the Gujarat High Court arguing that conversion by marriage which has been made an offence is against Article 21 and that it is for the married couple to decide which religion to follow (in case of inter-religious marriage).
The Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav remarked that it is not correct that only because of marriage, someone converts, and therefore, it is an offence. It is an affair between two individuals and so, there should be their say as well. The Court issued a notice in this manner to the state and Advocate General to seek the response.
On a hearing which took place on 17th August, the Gujarat High Court gave an interim order which held that the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021, will not apply to inter-faith marriages which take place without force, allurement, or fraudulent means. This was a move by the Court to protect the inter-faith marriage couples from being harassed. This was in response to a writ petition filed by Jamiat Ulama-E-Hind and Muhahid Nafees who challenged the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021 as they contended that the provisions violated the rights of inter-faith marriage couples. The Court further clarified that without any evidence or findings of fraud or force or allurement, the provisions cannot be applied in inter-faith marriages.
Observations made by the court
The High Court observed that this amendment brings conversions due to marriage through force or allurement or fraudulent means under the purview of the Act and a common man may not be able to understand this. A common man may perceive ‘every’ conversion due to inter-faith marriage as unlawful. The Court said that a prima-facie reading of Section 3 of the Act implies that marriage inter-faith followed by conversion would amount to an offence. Marriage itself and a consequential conversion is deemed as an unlawful conversion attracting penal provisions. But as per the argument made by the Advocate General, it is not so.
Therefore, the Court was of the opinion that rigours of Sections 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnized by a person of one religion with a person of another religion without force and such marriages cannot be termed as marriages for unlawful conversion. This interim order was mainly to protect the parties from being unnecessarily harassed.
While observing this, the court referred to the case of Shafin Jahan v. Ashokan (2018) which also held that the right to marry is a fundamental choice that gets covered under the right to life.
Lastly, the Court clarified that these provisions, as given under the Act, will not be applied if the conversion in the inter-faith marriage is based on free consent.
To conclude, there is a debate going on whether these love jihad laws are unconstitutional. The plea was filed with regards to the same and the Court explained as to when these provisions are actually applicable.
The rights should not be abused; converting to another religion solely for marriage is not a good idea. Marriage is the decision between two individuals and it is for no one to interfere in the same. The need is to accept this fact.
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