Updated: November 16, 2020 8:47:40 am
Many state governments have announced that they are considering enacting an appropriate law to stop marriages which they term as “love jihad” — essentially a part of interfaith marriages. The concept of “love jihad” has no legal or constitutional basis, it has been concocted for the last few years.
After the Hadiya case, recently, a few orders have been passed by the Allahabad High Court with respect to inter-faith marriages. In one of them, a Muslim girl by birth converted to the Hindu religion and just after a month, she married a Hindu man according to Hindu rites and rituals. After dismissing the petition, the court directed the girl to appear before a magistrate to record her statements. The purpose was to check whether the girl converted with her consent or not. In another matter, a Hindu girl by birth converted to Islam and married a Muslim. The High Court recorded her statement and after its subjective satisfaction that she, being a major, had acted of her own volition.
The first order of the High Court has relied on inferences from the Supreme Court judgment in Lily Thomas (2000), which is a clarification of the principles laid down by the SC in Sarla Mudgal (1995). Be it the Thomas case or the Mudgal case, the issue was of Hindu married men committing bigamy to avail a second marriage, without dissolving the first just by converting from Hinduism to Islam. Both judgments concluded that the second marriage of a Hindu husband, after his conversion to Islam, would not be valid in view of Section 494 of the Indian Penal Code. The Court clarified that a marriage solemnised as a Hindu marriage cannot be terminated by one spouse converting to another religion.
Any discussion in this background on conversion from one faith to another faith is incidental and the debate of free choice of faith cannot be diluted merely because at some stage that person marries another person whose faith does not match with the original faith of the convertee. Polygamy, polyandry, kidnapping, coercion, etc. are separate issues covered under existing provisions of the IPC.
The right to marry a person of one’s choice is a guarantee under Article 21. At the same time, freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25. One set of rights cannot invalidate the other.
If a person exercises the freedom under Article 25 to marry somebody of his or her choice, and in that process, one partner chooses to change their religion immediately prior to marriage, that should not be the matter of concern for social watchdogs. The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual. Provisions in our Constitution also recognised this as a part of fundamental freedoms. Hence, the mere statement of two consenting adults about the existence of their matrimonial relation is sufficient. The view of the Supreme Court (1965) that a marriage is not approved unless the essential ceremonies required for its solemnisation are proved to have been performed can only be read if one partner denies the marriage. Similarly, the observation that “marriage is the very foundation of civilised society” and without which no civilised society can exist have become obsolete given the recent judgments by larger benches of the Supreme Court.
Contemplating laws to regulate matrimonial relationships between two consenting adults would not be just against the constitutional guarantees but would offend the very notion of individuality and basic freedoms.
Recently, we have seen legislation like the Citizenship Amendment Act, which excludes only one religion from its purview, criminalisation of pronouncements of triple talaq and taking away the special status of Jammu & Kashmir. The legality of these pieces of legislation is pending consideration in the Supreme Court. Another such legislation, regulating and complicating the issue of a fundamental freedom, will create more trouble on the ground. Even for the courts, it shall be burdensome to get into these issues. The role of the courts has been to examine if the individual concerned has exercised their right of “free consent”.
This article first appeared in the print edition on November 16, 2020 under the title ‘Only willing consent’. The writer is advocate on record, Supreme Court of India
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