An Unholy War

Love follows no rules, no boundaries. Though society regulated the union of two people into the institution of marriage, love continues to break free of man-made rules. And interfaith marriages are exactly that—consenting adults deciding whom to love and live with. Such marriages should have been a matter of personal choice. But not always. There have been ins­tances when marriages have been mon­opolised within communities through laws. One such example is South Africa’s Prohibition of Mixed Marriages Act, 1949, when the imperialist regime came up with a novel concept to stop marriages between Europeans and non-Eur­opeans—basically a law to keep whites and non-whites apart. The law, which had penal consequences, was rep­ealed in 1985.

Cut forward to India 2020. Amid a pol­itical churning in the country, with the Hindu right wing asserting its right as the dominant tribe, many states are contemplating laws to stop what has been outrageously described as ‘love jihad’—an alleged plot to convert Hindu women to Islam through affection and/or coercion. The term ‘love jihad’ has no literary or statutory meaning but it seems to have gained appeal among a large section of the masses in India; that Muslim boys are untouchable when it comes to a Hindu woman exercising her constitutional right to choose a life partner. To give statutory basis to this fictitious concept there appears to be a competition within BJP-ruled states as to who will pass a legislation first.  Uttar Pradesh has already brought in an ordinance to regulate rel­igious conversion for marriage.

There have been innumerable ins­tances when the issue of religious conversion related to marriages have reached courts. And the courts have obs­erved that religious conversion is not acceptable for the sole purpose of marriage, but this has been overruled by the court. However, this principle of law has been wrongly positioned in public domain to justify the need for bringing statutory regulations. In 1891, a Hindu ‘wife’ converted to Islam and then married a Muslim. The Calcutta High Court said the earlier marriage of the ‘woman’ will not dissolve due to her conversion and she had to face charges of bigamy under the Indian Penal Code. Similarly, another Hindu ‘wife’ in Lahore converted to Islam in 1919 to marry a Muslim; again the high court in Lahore said that mere conversion will not dissolve the earlier marriage with a Hindu man. The courts decided on the same line when Christian, Jew and Zoarastrian women married outside their faiths. This proposition continued even without any statutory law in relation to the Hindu Marriages Act, 1955. Then came the Sarla Mudgal case of 1995 which highlighted the other side of the same coin where many Hindu ‘husbands’ had converted to Islam just to marry another woman. The Supreme Court said that a Hindu marriage continued to subsist even after one of the spouses converted to Islam and there was no concept of “automatic dissolution of marriage”; and that a marriage can only be dissolved as per the 1955 law.

Under normal circumstances, if a person wishes to change his or her religion, that should not be a concern of the State. Similarly, if two persons of separate religious faiths wish to marry, they can do so without changing his or her religion under the provisions of the Special Marriages Act, 1954. At the same time, it should not be assumed that before, during or after the marriage, one is not free to change his or her faith. This right too is part of basic freedom of an individual and this aspect has been dealt with in the Hadia case of 2018. The judgment has emphasised right to self-dete­rmination in the gender justice discourse, holding that “the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter, but his viewpoint or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition” want to marry a man of her choice. It further stated that “the strength of the Constitution, therefore, lies in the guarantee which it affords that each ind­ividual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage”. Earlier, a nine-judge bench of the Supreme Court had held that “family, marriage, procreation and sexual orientation are all integral to the dignity of the individual”.

Of late, Muslims have been systematically targeted through different exc­uses. In the recent past,  Gujarat came up with a legislation prohibiting sale and tenancy of immovable property in notified disturbed area to persons of ano­ther religion without prior approval of the district administration; the central government brought legislation on basic issue of citizenship, exc­luding Muslims, in a particular context; criminalisation has been attached to utt­erance of only a Muslim man to his wife in the context of the man’s int­ention to abandon his wife; the special status of only one state has been targeted where Muslims are in dominance; oppressive laws like UAPA and NSA have been imp­osed on Muslims very open-handedly, especially in UP; divisive campaigns of various nature against Muslims have sidelined them from effectively participating in the electoral process etc.

In the S R Bommai case of 1994, Justice K. Ramaswamy said that “strong religious consciousness not only narrows the vision but hampers rule of law” and there can be no democracy if anti-secular forces are allowed to work with followers of different religious faiths flying at each other’s throats. In an honour killing case too, it was observed that the ability to “choose” cannot be crushed in the name of class honour.

In the process of interfaith marriages, there has to be some level of checks and balances. The balance can only be to ens­ure that in case a person is converting to another religion, then it should be voluntary and without coercion or cheating. Now the question is: whether there can be pre-emptory regulations to declare personal choice of religious bel­ief to the government only because somebody wants to marry a person of his or her choice? We have a system where obtaining a ration card, an income certificate or even a death certificate take months, sometimes even years, though on paper such procedure may look very smooth.

Once the issue of administrative approval is made mandatory in such a sensitive matter as interfaith marriage, who will ensure that private issues of faith and choosing a life partner will not become the subject of vigilantism by non-state actors. We already see different categories of social watchdogs att­acking individuals in public parks and at home to keep a check on the choice of food; small gathering for celebrations being branded as religious conversion programmes and FIRs being lodged. Even the procedure adopted for act­ual formalisation of interfaith marriages under the Special Marriages Act has only helped the upper-middle-class and higher-class population, who in any case do not face much difficulty, if they need to deal with the procedure.

It is evident that the current regime has succeeded in finding much support to negate the basic fundamentals of secularism. Functioning of many institutions also reflect this aspect. This is drastically affecting social order and the role of the constitutional courts. Like in the past, except in a few prominent cases, the role of the constitutional courts generally is also not very pro-citizen in cases of protecting personal liberties and fundamental freedom. In the Hadia case, at some stage, the National Investigating Agency (NIA) was tasked with probing the marriage, under the supervision of a former Supreme Court judge. The NIA generally investigates issues of national security and the top court’s order appointing the NIA to investigate an alleged conspiracy will always remain a questionable one. The NIA, though, did not find any actionable material on the conspiracy angle. However, the SC ensured that the girl had exercised her free will to adopt a faith and her right to marry a person of her choice, after it set aside the wrong judgment of the Kerala High Court annulling the marriage.

Legislation are being brought focussing primarily on religious belief of an individual, rather than treating the person as individual. This culture of legislation is divisive. In our diverse culture, the issues of marriage and divorce of even one religion cannot be uniformly regulated. We have the Hindu Marriages Act but it specifically states that it shall not apply to the members of any scheduled tribe within the meaning of Clause (25) of Article 366 in the Constitution unless the central government does it through an official gazette notification.

The proposed legislation against ‘love jihad’ will complicate the basic fundamental freedom of an individual. This shall carry a potential threat of vigilantism and uncalled for multiplication of criminal matters in police station and the courts. Love and marriages are best left to individuals.