Love Jihad - Marriage Is A Legal and Social Institution Rather Than A Religious One
By
Govind Bhattacharjee
December
17, 2020
Pinky alleges she suffered a miscarriage | Photo:
Praveen Jain | ThePrint
When we were on our way, we were stopped by a group of
Bajrang Dal people. They asked me my name and then started abusing me. They
called our marriage love jihad and dragged us to the police station.
“I told them that I married out of my own will and I
was pregnant, but they did not listen. They kept abusing me and my husband and
pushed and thrashed me when I resisted their attempt to report us to the
police,” she added.
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Religion
may or may not be the opium of the people but a saviour to populist politicians
it sure is. So, the UP Government has now targeted love. On 24 November, the UP
Cabinet cleared the Uttar Pradesh Unlawful Religious Conversion Prohibition
Ordinance, 2020, that makes religious conversion a non-bailable offence which
may attract a prison term of up to 10 years and a fine of up to Rs 50,000 if
such conversion is found to be “effected for marriage or through
misrepresentation, force, undue influence, coercion, allurement or other
fraudulent means”, and even social organisations arranging mass marriages of
couples can be booked under the draconian law.
The scope
of the ordinance is so wide and amorphous that any motive can be attributed and
established by the state’s police, not particularly renowned for professional
conduct. What makes the ordinance more dangerous, especially to the minorities,
is that the burden of proof is on the accused and the convert, making a mockery
of one’s rights to be considered innocent unless proven guilty. The ordinance
further mandates that a person seeking to convert to another religion for
marriage would have to inform the district magistrate two months in advance
seeking permission for such marriage, otherwise it may entail a jail term up to
three years and a fine of Rs 10,000.
Ironically,
a September 2020 judgment by a single-bench of the Allahabad High Court in a
case involving an inter-faith couple ruling against religious conversions only
for the sake of marriage, which the Yogi Adityanath government has cited as
justification for this ordinance, was overturned by a division bench of the
same High Court only on 11 November.
The ruling
by the division bench of Justices Pankaj Naqvi and Vivek Agarwal emphasised the
values of our Constitution, “We do not see Priyanka Kharwar and Salamat as
Hindu and Muslim, rather as two grown up individuals who out of their own free
will and choice are living together peacefully and happily over a year.”
Quoting the
2017 Supreme Court Judgment in KS Puttaswamy vs Union of India, the learned
Judges said that the “right to choose a partner irrespective of caste, creed or
religion, is inhered under right to life and personal liberty, an integral part
of the Fundamental Right under Article 21 of the Constitution of India.” The
judgment further said, “To disregard the choice of a person who is of the age
of majority would not only be antithetic to the freedom of choice of a grown up
individual but would also be a threat to the concept of unity in diversity. An
individual on attaining majority is statutorily conferred a right to choose a
partner, which if denied would not only affect his/her human right but also
his/her right to life and personal liberty, guaranteed under Article 21.”
On 1
December, Karnataka High Court gave a similar ruling upholding individual
choice in a case involving an interfaith couple, saying that the “liberty
relating to personal relationship of two individuals can’t be encroached upon
by anybody irrespective of caste or religion.” There are other cases, like
Shafin Jahan v. Asokan K.M (2018) in which the apex court had consistently
upheld the liberty and choice of an adult individual. But the short-sighted UP
government seems blind to such a clear constitutional position regarding the
liberty of personal choice. There is no evidence on the ground that large scale
religious conversion of Hindu women is rampant anywhere. Hardly a handful of
cases have emerged and in most of these cases, the girls have refuted the
allegation of any love jihad angle. In any case, inter-faith marriages are to
be celebrated and not criminalised; they celebrate the unity and diversity of
the country and usher in larger integration between religions and communities.
The
ordinance strikes at the root of this diversity, as well as individual liberty
and freedom of religion which are fundamental rights under the Constitution.
Clearly the ordinance targets religious minorities and is likely to be misused
to their disadvantage, marginalising them further.
Soon after
the ordinance was promulgated on 28 November, the police arrested a Muslim
youth in Bareilly district, allegedly on a complaint by a girl’s father.
Arrests and harassment of Muslim youth married to Hindu women are now being
reported every day. Meanwhile other states are also readying themselves to join
the love-jihad bandwagon ~ like Madhya Pradesh, Haryana, Karnataka and Assam.
Indian states are about to replace the notorious Khap Panchayats, they are
likely to become even more tyrannical.
Soon,
harassment by police or vigilantes and state persecution of interfaith couples
will become the standard operating procedure in society ~ damned be the right
to privacy and individual liberty. Obviously, such unlawful encroachment into
citizens’ lives by the state will not end with inter-faith marriage but will progressively
extend to more areas of individual rights and choices. Hindus can be married
under the Hindu Marriage Act, 1955, which also applies to Hindu, Jains, Sikhs
and Buddhists; the marriage involves rituals and the Saptapadi. Muslims are
married under the Muslim Personal Law (Shariat) Application Act, 1937. An
interfaith marriage between Hindus and Muslims or Christians will therefore
call for conversion of either of the spouses under these laws.
The only
way such an interfaith marriage can take place without necessitating religious
conversion is through the Special Marriage Act, 1954, which applies to all
Indian citizens irrespective of their religion. This Act has some strange and
archaic provisions, like the requirement of 30 days’ advance notice to the
Registrar of Marriage, during which period the notice along with photographs of
the marrying couples are prominently displayed at the Marriage Register’s
Office for anyone to raise valid objections, possibly to prevent misuse or
fraud.
But the
actual purpose it is serving is to alert the vigilant groups and relatives for
hounding the consenting couple which may result even in their murder,
especially when the union is against the wishes of the family. Now this UP
ordinance is serving the same purpose; only a few days ago, based on complaint
by a vigilant Hindu outfit, police prevented the marriage between a Hindu girl
and a Muslim boy that was about to be solemnised in Lucknow with the sanction
of both families, on the ground that it needed the sanction of the District
Magistrate under the ordinance, even though it was not a forced conversion or
caused any offence mentioned in the ordinance. The locus standi of the vigilant
group is also mystifying. It cannot get more absurd than this.
Marriage is
more a legal and social institution rather than a religious one, and any
attempt by the state to interfere in the union between two consenting adults
reeks of nothing but religious prejudice, vendetta and wilful disruption of
social harmony by pitting one religion against another. It is nothing but a
frontal assault upon the Constitution. The UP Government should have considered
the Supreme Court judgment in Hadiya’s case overturning the Kerala High Court’s
annulment of her marriage to a Muslim boy after converting to Islam, in which
the court reminded that the freedom to choose a religion or a life partner is
at the heart of Indian plurality and must be guarded overzealously.
Love
between couples belonging to different faiths is a cause for celebration,
especially when distrust and cleavages run so deep in our society between
members of different communities. Love unites and is the only antidote against
hatred. But it is this love that is increasingly being targeted by the
fundamentalist vigilant groups that operate outside law with impunity, often
with the State’s tacit support, to disturb social harmony that ultimately
affects economic development in many ways. One has not forgotten about the sad
case of the wonderful Tanishq advertisement for jewellery featuring an
inter-faith couple that was meant to celebrate our unity in diversity; it had
to be withdrawn due to the backlash by radical right-wing elements in the
social media.
Only last
month, Netflix had to face their wrath for showing a Hindu woman and a Muslim
man share a kiss for its TV series A Suitable Boy. In all these cases,
the standard response of the political executive is that it hurt the “religious
sentiments” of the majority community, as if they are the sole guardians of
their sentiments and emotions. When such attempts at lumpenisation of society
get official approbation rather than unequivocal opprobrium, who can prevent
society’s slide down a steep slippery slope? Like on many occasions, Indians
can only pin their hopes on the Supreme Court to rescue our cherished democracy
from such brazen onslaught by short-sighted politicians who not only lack
imagination but have abandoned their reason as well.
Original
Headline: Targeting Love
Source: The Statesman
URL: https://newageislam.com/islam-politics/love-jihad-marriage-legal-social/d/123801
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