Author: Smriti Jha, Student at National University Of Study And Research In Law, Ranchi.
The term Love Jihad under which it is allegedly believed that Muslim men mostly target the women of the majority community in India for conversion and allure them for love and marriage in order to satisfy their religious demographic edge. This very term rose to national prominence in 2009 while referring to alleged conversions in Kerala and the Mangalore region of coastal Karnataka1. In recent years, the issue of Love Jihad has metamorphosed itself into an agenda for further propagating the idea of Hindu Nationalism. Recently, at least five BJP ruled states including Uttar Pradesh have enacted laws/ordinances by making religious conversions for marriage illegal. Juxtaposed, this has compromised the very fundamental women’s right of making choices for their marriages. An attempt has been made in this paper to unravel the legal ramifications of Love Jihad with regard to the rights of women to make their inter-faith choices in terms of marriage.
Sarla Mudgal case2 of 1995 is often cited as supporting these anti-conversion laws. The case concerned the right of the Hindu husband to convert in order to marry again. The court held that while the husband has the right to convert, he has no right to marry again until he divorced his first wife under the Hindu Marriage Act 1955 and would also be subjected to rules against bigamy under the Indian Penal Code. The Supreme Court upheld this judgment in Lily Thomas case3 in 2000.
In Noor Jehan [email protected] Mishra and Another v. State of UP and Others4 (2014) where the petitioners had converted to Islam before marriage and sought protection from the Allahabad High Court, the court declined to entertain the writs on the ground that the petitioners had converted for the purpose of marriage only.
Recently, the issue of Love Jihad came to prominence with a judgment of Allahabad High Court in Priyanshi case5 in which a young couple, who had married after the girl, a Muslim converted to Hinduism, approached the court for protection from harassment and intimidation from the girl’s family. The Court, however, refused to protect the couple and did not even consider whether the two adults living together of their own free will had the right to be protected from possible criminal intimidation by their parents. Although this regressive judgment of the court has been overturned by a larger bench of the Allahabad High Court in Salamat Ansari and Others v. the State of UP6 by maintaining that interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.
Yet, taking a cue from the Priyanshi judgment, on November 24, Uttar Pradesh became the first state to promulgate an ordinance, the Unlawful Religious Conversion (Prohibition) Ordinance 20207, thus making ‘forced conversions for marriage’ a punishable offense with a jail term up to ten years and a fine. The main features of this ordinance are:
- It prohibits religious conversions not only through false representation, coercive measures, or fraudulent tactics but also through marriage.
- All the conversions have been made non-bailable offense with imprisonment up to five years with a fine of Rs. 15000/-.
- The onus of proving that the conversion is not coercive has been shifted from the convertee to the converter.
- It is further stated that if the conversion of a woman is solely for the purpose of marriage, the marriage will be declared null and void.
- Apart from the above, it has been made mandatory to give the magistrate two months’ notice prior to the date of conversion by the person who wants to be converted. Any violation of this will attract punishment of a minimum of six months up to three years imprisonment along with a fine of Rs. 10000/-.
LEGAL IMPLICATIONS OF THE ORDINANCE
The ordinance appears to be anti-women by restricting their choice in terms of their marriages.
This ordinance under the legal reference of terms may be said to be anti- Constitutional. It maintains that if a person converts for marriage, he/ she would be imprisoned. It does not allow us to see whether such conversion is forced or willful.
Further, it is also against the established criminal law of the land as it stipulates the convertee to prove the onus for conversion and not by the state, as positioned earlier.
The proposed law is glaringly against the fundamental right to adopt any religion as enshrined in our Constitution.
This ordinance is also restrictive of choices for women in terms of their matrimonial alliances.
PREVIOUS COURT RULINGS ON INTERFAITH MARRIAGES AND THEIR LEGAL RAMIFICATIONS
Despite court orders, including the Supreme Court rulings on several occasions with regard to upholding an adult woman’s right to choose and marriage, the State of UP, with the tacit support from the upper echelon of the government rendered prominence to the above-mentioned judgments while relegating all such SC rulings to hindsight which upheld constitutional propriety on this issue. It is pertinent to look up the veracity of the ordinance in the light of the Court rulings.
In Nandkumar vs the State of Kerala,8 the Supreme Court observed that the High Court’s approach of looking into the validity of the marriage was wrong as the petitioner, the major, had the right to marry whoever she wanted and move wherever she wanted.
In the Puttaswamy case9, the Supreme Court held that the right to choose a partner is a fundamental right. It further observed that the inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated with matters which can be kept private.
In Lata Singh v. the State of UP10, in which an inter-caste couple petitioned in the court under Article 32, the Supreme Court held that “this is a free and democratic country and once a person becomes a major, he or she can marry whosoever he or she likes. If the parents of the boy or girl do not approve of it, the maximum they can do is to cut off social relations with their siblings but they cannot threaten or harass them for their inter-faith marriage.
In Shakti Vahini Case11 on honor-related crimes, the Supreme Court maintained that the choice of an individual is an inextricable part of human dignity and the choice of two adults to marry on their own volition has to be thus considered as an infringement of their fundamental rights.
In the famous Hadiya case12 of 2017 where Hadiya had stated that she had embraced Islam and married Shafin Jahan of her own free will but her father intervened and challenged her conversion as forced, the Supreme Court ruled that it was a marriage of two consenting adults and the state had little business to enter into private law. It further said, “The moment you allow public law to encroach into marriage, you are letting the state interfere in an individual’s choice of a citizen.”
In the recent Salamat Ansari13 case, Allahabad High Court after overturning the single judge decision in the Priyanshi case corroborated the followings-
- The right to live with a person of one’s own choice was intrinsic to one’s personal liberty.
- Any interference in a personal relationship would constitute encroachment into the right to freedom of choice of the two individuals.
- It further stated that neither any individual nor a family nor the state can have any opinion on the relationship of two major individuals who of their free will are living together.
If we look at the legislation on Love Jihad within the larger legal and socio-political ambit of our land the following conclusions may be drawn-
- The ordinance on Love Jihad is political in its overtone. This has been utilized to further deepen the cleavage between the Hindu and Muslim communities in order to embolden the notion of Hindu Nationalism.
- In its legal overtone, it is a frontal attack on one of the most fundamental rights the right to marry a person of one’s own choice, and thus must be withdrawn.
- The law runs counter to the constitutional guarantees and rights being upheld by the Supreme Court several times through its rulings.
- This ordinance is conservative, paternalistic, and patriarchal in its outlook.
- Special Marriage Act needed to be amended as the 30 days of gestation period required under it inviting objections gave an opportunity for others to interfere and discourage interfaith marriages and placate a grounding for such regressive enactments.
- The Law Commission had also recommended that the procedure under the Special Marriage Act be the same as in the Hindu Marriage Act and the Muslim Personal Law where marriages can be registered the same day.
- In 2013, the 242nd Law Commission Report14 recommended the drafting of a Bill for the ‘Prohibition of Interference with Matrimonial Alliances’ in order to tackle honor-related crimes owing to interfaith marriages/ relations.
The legal fraternity must rise on the occasion to mitigate all such legal dilemmas so as to protect the constitutional propriety and upheld the sovereign rights of the citizens.
 Love Jihad, Wikipedia, Available at en.wikipedia.org/wiki/LoveJihad (last visited December 20, 2020).
 AIR 1995 SC 1531
 Available at https://indiankanoon.org/doc/22354729/ (last visited December 20, 2020)
 AIR 2013 SC 2662
 Available at https://www.livelaw.in/pdf_upload/pdf_upload-383854.pdf (last visited December 21, 2020)
 Available at https://www.indiatoday.in/india/story/priyanka-kharwar-salamat-ansari-not-hindu-muslim-for-us-says-allahabad-high-court-cancels-case-against-man-1743644-2020-11-24(last visited 22 December 2020)
 Available at https://www.lawyersclubindia.com/news/up-prohibition-of-unalwful-conversions-of-religion-ordinance-2020-17989.asp (last visited December 21, 2020)
 Nandakumar v. State of Kerala, 2018 SCC Online SC 492, decided on 20.04.2018
 Available at https://indiankanoon.org/doc/127517806/ (last visited December 22, 2020)
 Available athttps://www.lawnn.com/landmark-supreme-court-judgment/(last visited December 23, 2020)
 Shakti Vahini v. Union of India (2018) 7 SCC 192
Hadiya Marriage: Shafin Jahan vs. K.M. Ashokan & Ors (AIR 2018 SC 357)
 Available at https://indiankanoon.org/doc/54191782/ (last visited December 24, 2020)
 Available at https://lawcommissionofindia.nic.in/reports/report242.pdf (last visited December 24, 2020)