In a sign of hope, courts have taken a progressive view of such marriages and left it to individuals to decide who they should marry. In some cases, states have been pulled up for their narrow views.
By Advocate Vikas Bansal
There can be “no interference if an adult marries as per her choice, converts and refuses to return to her parents”, the Calcutta High Court said recently while hearing the plea of a Hindu man whose 19-year-old daughter had converted to marry a Muslim youth.
The bench comprising Justices Sanjib Banerjee and Arijit Banerjee was hearing a petition moved by the father, a peasant from Durgapur village in Nadia district. He said that his daughter left home on September 15 saying she was going to the bank and the next day he learnt that she had converted, adopted a Muslim name and got married. He further alleged that his daughter was either coerced into doing so or lured.
On an FIR filed by the father, the police had produced the woman before a judicial magistrate, where she made a statement that she had married of her own free will and did not wish to return to her paternal home.
The Court said:
“She is 19 years old. She has married a person of her choice and she apparently does not want to return to her paternal home. If an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.”
The father, however, raised apprehensions that she may have been induced to give her police statement. Thereafter, the woman gave a second statement before the magistrate, again indicating that she was not under any coercion or undue influence. This was also not sufficient to convince her father.
Susmita Saha Dutta, the lawyer representing the father, claimed before the division bench that the husband was present within the court premises in Nadia district when the woman appeared before the judge. The bench noted that despite a clear and clean report being furnished by the additional district judge, the father harboured some suspicion.
There have been numerous such cases of inter-religious marriages leading to controversy. The most prominent was the Hadiya case in 2017, where a woman from Kerala, formerly known as Akhila Ashokan, married a Muslim man called Shafin Jahan and converted to Islam. Her father insisted she was brainwashed and sought annulment of the marriage. The Kerala High Court granted that and restored her “custody” to the father.
Jahan approached the Supreme Court and it took ten months before his marriage could be restored. In Shafin Jahan vs Ashok KM (2018), the Court after setting aside the annulment of the marriage of Hadiya and Jahan, upheld the right to marry a person of one’s choice as a part of Article 21. Similarly, in the KS Puttaswamy vs UOI (2017) judgment, the Court said the “right of choice of a family life” was a fundamental right.
In 2019, the Supreme Court observed that the marriage of a Hindu woman to a Muslim man is not “regular or void” and the wife can’t inherit the husband’s property. For certain, the government should have no role in personal choices of an individual; it should facilitate the fulfilment of their choices.
Examining the constitutionality of anti-conversion laws, the Supreme Court in Rev. Stainislaus vs State of MP (1977) observed: “if an attempt is made to raise communal passions, e.g. on the ground that someone has been ‘forcibly’ converted to another religion, it would, in all probability, give rise to an apprehension of a breach of public order, affecting the community at large”.
The IPC too has supported women in such cases. Section 366 deals with kidnapping, abducting and coercing a woman into marriage. It states:
“Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Even High Courts have shown the way on such issues. The Allahabad High Court, on November 11, 2020, in Salamat Ansari vs Uttar Pradesh held that the choice of a partner is the exclusive domain of the individual. It also distinguished itself from the Noor Jahan Begum case (2014) by suggesting that this earlier case did not deal with the “liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live”.
On December 18, the Allahabad High Court refused to stay the Uttar Pradesh government’s ordinance to ban unlawful religious conversions, but issued notices to the state and others on a bunch of PILs that challenged the law. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was promulgated in November to prohibit religious conversions in the name of “love jihad”.
The law prohibits any religious conversion by use of misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. Critics have argued that the definition of “allurement” in the ordinance has a very broad scope, which includes gifts and other monetary and non-monetary gratifications. Their concern is that this may lead to penal action if one person converts after receiving a gift from another in ordinary course as well.
Some state governments, including Uttar Pradesh, have recently brought in “anti-love jihad” laws. “Love jihad” is a term coined by right-wing outfits to describe a Muslim “conspiracy” to convert unsuspecting Hindu women to Islam.
A number of studies conducted by research scholars have found that interfaith marriages have limited impact on society at large. For instance, students and faculty of the government run International Institute for Population Sciences had presented a paper on inter-faith marriages in India in 2013 by analysing data from the “India Human Development Survey, 2005” to explore the extent of mixed marriages in India.
The Constitution enshrines secularism. This means India is not anti-religion, pro-religion or irreligious. Despite this, several states have had anti-conversion laws for a long time, including Odisha, Arunachal Pradesh, Gujarat, Himachal Pradesh and Jharkhand. However, these laws made it illegal to use force to convert a person.
Based on Articles 25 to 28, an Indian citizen is guaranteed the freedom to practise any religion of his or her choice. The “love jihad” law curtails this freedom. The State wants to intervene not only in the citizens’ private relationship with God, but also in the choice of their spouse. In addition, the proposed law does not account for agnostics.
The architect of the Indian Constitution was for liberty. Liberty includes the right to follow any faith of our liking, or to be an agnostic or atheist as well. While many people have not exercised their right to choose their religion, many have done so in the past. That’s how Islam, Christianity, Sikhism and Buddhism spread in India.
Buddhism faced a painful trajectory as it was attacked by elite intolerant traditions within Hinduism, which are totally against the concept of equality as propounded by Buddhism. Birth based inequality is a peculiar feature of some sects in India, with the sanction of holy scriptures. As a practice, it is also part of other religions to some extent.
Personal laws relating to Hindu marriage and divorce were codified in the mid-1950s. The Hindu Marriage Act (HMA) also applies to anyone who is not a Muslim, Christian, Parsi, Jew or from an exempted Scheduled Tribe. A man or a woman from any group or caste may marry under the HMA. However, the bride and the groom cannot be related by blood for a few generations. There is an exception to this rule which applies for communities where marrying one’s cousin is traditionally permitted.
Love between couples belonging to different faiths is cause for celebration, especially when distrust and cleavages run deep in our society between members of different communities. But it is this love that is increasingly being targeted by fundamentalist vigilante groups that operate outside the law with impunity, often with the State’s tacit support.
The social unrest that follows ultimately affects economic development in many ways. In view of the conservative nature of Indian society, inter-faith marriages are frequently opposed and in some cases, lead to honour killings.
Advocate Vikas Bansal is a practising advocate in the Supreme Court of India.