By M R Shamshad
November
16, 2020
The concept of “love
jihad” has no legal or constitutional basis, it has been concocted for the last
few years.
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”.
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M R Shamshad is advocate on record, Supreme
Court of India
Original Headline: It is not for the law to
decide on any other matter concerning marriage of two adults
Source: The Indian Express
URL: https://newageislam.com/interfaith-dialogue/inter-faith-marriages-right-marry/d/123480
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