Higher Courts Have Emphasised the Legal Validity and Social Unassailability of Interfaith Marriages - Linking Them To Human and Constitutional Rights
By
Tahir Mahmood
Dec 30,
2020
LOVE is
blind’ is a quirky phrase being cited in the West since the beginning of the
15th century. “Love is so blind, it feels right when it’s wrong,” US star
Beyoncé Knowles has been singing in our time. Cupid’s arrow can indeed break
all sorts of blinds and pierce through the narrow confines of religion and
caste. In India, arranged marriages have been the general social norm —
marriages by the parties’ own choice have been, and remain, an exception.
Interfaith marriages belong to this exceptional category — parents and
guardians never ‘arrange’ their wards’ marriage outside their community, even
in the 21st century. By no means, however, are cross-cultural marital alliances
a new social phenomenon. The multi-religious society, that we have always been,
has had enough space for them in all phases of our history.
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Also
Read: Interfaith
Marriage: The Dilemma of Inequality In Religion Facing Muslim Female In Modern
World
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In modern
India, higher courts have emphasised time and again the legal validity and
social unassailability of interfaith marriages, linking them to people’s human
and constitutional rights. The apex court had declared in the Lata Singh case
of 2006: “This is a free and democratic country and once a person becomes
major, he or she can marry whosoever he or she likes.”
Referring
to parental objections to an interfaith marriage, the court had ruled: “The
maximum they can do is to cut off social relations with the son or the
daughter, but they cannot commit or instigate acts of violence against the
person who undergoes such a marriage.” In the Shakti Vahini case of 2018, the
court reiterated: “When two adults marry out of their volition, they choose
their path; they consummate their relationship; they feel that it is their
goal, and they have the right to do so.”
UNAMBIGUOUS: India’s higher courts have emphasised time and again the
legal validity and social unassailability of interfaith marriages. PTI
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The apex
court verdicts on interfaith marriages have been cited and acted upon in many
High Court decisions. There have been some aberrations, only to be corrected,
sooner or later, by higher judicial bodies. In Noor Jahan (2014), the Allahabad
High Court had taken a contrary view, holding that conversion for the sake of
marriage was legally untenable. Continuing with its opinion in the Priyanshi
case decided this year, the court dismissed a petition filed by an interfaith
couple seeking police protection. Both these cases were decided by single
judges who, like the ordinary members of society, must have been influenced by
the political ideology currently dominant in the state where their court sits.
It was unfortunate but not unprecedented — the concept of committed judges has
not been unknown in our country either at the local or the national level.
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Also
Read: Why Hindu Women (And Men) Should Oppose the ‘Love Jihad’
Law
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As the decisions
in both these cases clearly went against the letter and spirit of the Supreme
Court rulings on the subject, they could not hold the ground for too long.
Within a few weeks after the second case was decided, a Division Bench of the
Allahabad High Court overruled both, declaring that they had not laid down
‘good law’ (Priyanka Kharwar, decided on November 11, 2020). “Interference in a
personal relationship would constitute a serious encroachment into the right to
freedom of choice of the two individuals,” the two judges on the Bench ruled,
adding that they did not see parties to an inter-religious alliance as Hindu
and Muslim but “rather as two grown-up individuals who out of their own free
will and choice are living together.”
In quick
succession came the Karnataka High Court ruling saying, more clearly, that “the
right of any major individual to marry the person of his or her choice is a
fundamental right enshrined in the Constitution of India and the said liberty
relating to the personal relationships of two individuals cannot be encroached
by anybody irrespective of caste or religion” (Ramya G, decided on December 1,
2020).
The latest
judicial proclamation on the true constitutional position of interfaith
marriages has come from the Calcutta High Court (Palash Sarkar, decided on
December 21, 2020). A Bengali Hindu girl married a Muslim and her father,
bitterly displeased, made every possible attempt to unsettle the couple. She
declared before the law and order agencies that she had married the man by her
own free will, but her father assailed her statement on the ground of alleged
coercion. The matter eventually reached the High Court, where a Division Bench,
after satisfying itself of the veracity of her statement, ruled that if an
adult woman converts and marries as per her choice, there could be no
interference by any outside agency, including the courts.
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The
question is why the oft-repeated judicial exposition of the true constitutional
position on interfaith marriages, despite being loud and clear, is not able to
change social trends in this regard. The policies of ruling dispensations in
some states, running conspicuously contrary to the juridical verdicts on the
issue, lend a shoulder to anti-social elements to fire their guns from. Do we
not recognise our higher courts any more as interpreters of law and dispensers
of justice? If we really do not, are we still eligible to be reckoned among
democratic nations of the world? Or, do we want to develop our own unique
concept of a two-legged democracy resting on the legislature and executive
only, with no space for the globally recognised third pillar of a democratic
polity? Does anybody have an answer?
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Tahir
Mahmood is an Ex-Member, Law Commission
Original
Headline: Personal liberty bedrock of interfaith marriages
Source: The Tribune India
URL: https://newageislam.com/interfaith-dialogue/higher-courts-emphasised-legal-validity/d/123925