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Thursday, September 23, 2021

Anti-conversion law: Gujarat HC stays sections linked to interfaith marriages

Advocate general Trivedi had submitted that interfaith marriages are “per se not prohibited” under the amended Act, but the HC said the language of the legislation does not make this clear.

By: Express News Service | Ahmedabad |
Updated: August 20, 2021 1:52:09 am
interfaith marriages, interfaith marriage gujarat, love jihad, love jihad gujarat law, Freedom of Religion (Amendment) Act, 2021, gujarat HC freedom of religion act, gujarat HC interfaith marriage, indian express, gujarat newsThe amended act came into force on June 1, and till date, three cases have been filed under it.

Granting parties in interfaith marriages protection “from being unnecessarily harassed”, the Gujarat High Court on Thursday stayed the operation of several sections of the Freedom of Religion (Amendment) Act, 2021, including the provision that termed interfaith marriages as means for forceful conversion.

The interim relief by a division bench of the court came while it was hearing two petitions challenging the constitutionality of the amended Act. Till date, three cases have been filed under the law, according to submissions made by Advocate General (AG) Kamal Trivedi.

The law, which was amended to bring in the clause on interfaith marriages as a means to carry out forced conversion, among other things, was passed by the Gujarat Assembly on April 1. After Governor Acharya Devvrat gave his assent on May 22, the state government notified it and enforced the amended law in the entire state from June 15.

The two petitions — one filed by the Jamiat Ulama-e-Hind and the other by an Ahmedabad resident, Mujahid Nafees — challenged the amended Act primarily on the grounds that the law is manifestly arbitrary and violates the right to privacy.

“We are therefore of the opinion that pending further hearing, the rigours of sections 3, 4, 4A to 4C, 5, 6 and 6A, shall not operate merely because marriage is solemnised by person of one religion with another without force, or allurement or fraudulent means and such marriages cannot be termed as marriages for the purpose of unlawful conversion,” Chief Justice Vikram Nath said.

“The above interim order is provided only on the lines of the arguments advanced by Mr (Kamal) Trivedi, learned advocate general, and to protect the parties solemnising the marriage (interfaith) from being unnecessarily harassed,” Justice Nath added.

On August 17, AG Trivedi had submitted before the court that interfaith marriages are “per se not prohibited” although the bench of Chief Justice Nath and Justice Biren Vaishnav had observed that the language of the amended Act does not make the same clear, leaving a “sword hanging” on such marriages.

On Thursday, the AG requested the bench to clarify if the operation of the said sections may be allowed if a marriage results in forceful conversion, to which the bench responded that its order has said that interfaith marriages done without force, allurement or fraudulent means cannot be construed as an offence.

Section 3 of the amended Act deals with “prohibition of forcible conversion” and states, “No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by allurement or by any fraudulent means or by marriage or by getting a person married or by aiding a person to get married nor shall any person abet such conversion”.

Section 4 lays down punishment for violation of Section 3, with imprisonment of up to four years, with section 4A providing for punishment for contravention of provisions of Section 3 in case of marriage by unlawful conversion, with a maximum prison term of seven years.

Section 4B defines “marriage by unlawful conversion” as “any marriage which is done for the purpose of unlawful conversion by the person of one religion with the person of another religion, either by converting himself/herself before or after marriage, shall be declared void by the Family Court or where the Family Court is not established, by the Court having jurisdiction to try such cases”.

Section 4C lays down offences by institution or organisation being in contravention of Section 3 and stipulates punishment up to 10 years of imprisonment. Sections 5 and 6 stipulate prior permission of district magistrate in case of conversion and district magistrate’s permission to prosecute offences under the Act.

Section 6A lays down the burden of proof as to whether a religious conversion was “not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage” on the person “who has caused the conversion and, where such conversion has been facilitated by any person by act, omission, aid, abetment or counselling, on such other person”.

Reacting to the passing of the interim order, Jamiat national president Maulana Mahmood Madani said that the court had “shown a mirror of reality to those in power who made this law with bad intent. The components of the law are stricter than UAPA. You cannot treat a social problem this way. It will further complicate the issue”.

Responding to queries at the sidelines of an event at Mansa, Deputy Chief Minister Nitin Patel said, “I am not aware of the comments on the love jihad law by the Honourable High Court. Whatever may be the observations or comments, it is natural that our Advocate General and other government lawyers will apprise the chief minister, home minister and the legal department. The government will decide on steps to take once we have full information of the comments and observations made.” —Inputs from ENS, New Delhi

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