GS Paper: GS1-10.Social empowerment, communalism, regionalism & secularism.

An individual’s right to marry a person of his or her choice is a fundamental right that cannot be denied on the basis of caste or religion by anybody, re-iterated the Karnataka High Court.

Discuss the various ethical and rights issues involved in interfaith marriages.

Right to Marriage

• The right to marry is a part of the right to life under Article 21 of the Indian Constitution.
• The right to marriage is also stated under Human Rights Charter within the meaning of the right to start a family.
• The right to marry is a universal right and it is available to everyone irrespective of their gender.
• Various courts across the country have also interpreted the right to marry as an integral part of the right to life under Article 21.
• A forced marriage is illegal in different personal laws on marriage in India, with the right to marry recognized under the Hindu laws as well as Muslim laws.

Other laws that lay down a person’s right to marry in India are:

1. The Prohibition of Child Marriage Act, 2006
2. The Guardians and Wards Act, 1890
3. The Majority Act, 1875
4. The Family Courts Act, 1984
5. The Protection of Women from Domestic Violence Act, 2005

Back2Basics: Scope of Article 21

• Article 21, considered the heart and soul of the Constitution, states, ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law.

It has a much more profound meaning that signifies the:

• Right to live with human dignity
• Right to livelihood
• Right to health
• Right to pollution-free air
• Right to live a quality life
• Right to go abroad
• Right to privacy
• Right against delayed execution,

And anything and everything that fulfils the criteria for a dignified life.

Forced religious conversions for interfaith marriages cases are widely seen in news these days. And many states are attempting to ban religious conversion for the sole purpose of marriage.

Try answering this:

Q. The recent withdrawal of a TV commercial advertisement showing an interfaith marriage has led to an astonishing blowback. In light of this, discuss the various ethical and rights issues involved in interfaith marriages.

Context

• Though the Special Marriage Act, 1954 (SMA) was enacted to facilitate the marriage of couples professing different faiths, and preferring a civil wedding.
• However, some practical problems arise in registering such marriages.
• The law’s features on prior public notice being given and objections for the safety and privacy of those intending to marry across religions.
• To overcome this, many settle for marriage under the personal law of one of them, with the other opting for religious conversion (accusingly termed as Love-Jihad).

What are the features of the SMA?

• Age: The marriage of any two persons may be solemnized under the SMA, subject to the man having completed 21 years of age and the woman 18.
• Consent: Neither should have a spouse living; both should be capable of giving valid consent, should not suffer from any mental disorder of a kind that renders them unfit for marriage and procreation.
• Liability: They should not be within the degrees of prohibited relationship — that is, they should not be related in such a way that their religion does not permit such marriages.
• Registration: Parties to an intended marriage should give notice to the ‘marriage officer’ of the district in which one of them had resided for at least 30 days.
• Objections: Any person can object to the marriage within 30 days of the publication of the notice on the ground that it contravenes one of the conditions for a valid marriage.
• Publication: The notice will have to be entered in a ‘Marriage Notice Book’ and a copy of it displayed at a conspicuous place in the office. The Notice Book is open for inspection at all reasonable times without a fee.
• Inquiry and approval: The marriage officer has to inquire into the objection and give a decision within 30 days. If he refuses permission for the marriage, an appeal can be made to the district court. The court’s decision will be final.
• Severance from family: Also, the Act says that when a member of a Hindu undivided family, gets married under SMA, it results in his or her “severance” from the family.

Threats after such marriages

• The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnize inter-faith marriages.
• Publicity in the local registration office may mean that family members objecting to the union may seek to stop it by coercion.
• In many cases, there may be a threat to the lives of the applicants.
• There have been reports of right-wing groups opposed to inter-faith marriages for communal propaganda.

Issues with the publication of notices

• In July, the Kerala Registration department decided to discontinue the practice of uploading marriage notices on its websites following complaints that these were being misused.
• However, the notices will be displayed on the notice boards of the offices concerned.
• These provisions have been challenged in the Supreme Court recently on the grounds that they violate the privacy of the couples, their dignity and right to marry.
• In the case of Hindu and Muslim marriage laws, there is no requirement of prior notice and, therefore, such a requirement in the SMA violates the right to equality of those opting for marriage under it.

States against conversion for the sake of marriage

• Even though Uttar Pradesh (U.P.) and Karnataka have spoken about a separate enactment, at least two States have legal provisions to the effect.
• The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and ‘by marriage’.
• There is a separate section in both laws under which, not conversion for the purpose of marriage, but marriage has done solely for the purpose of conversion, may be declared null and void by a family court based on a suit by either party.
• The U.P. State Law Commission has recommended a similar Freedom of Religion law in the State and favours a provision under which marriages solemnized solely for the conversion of one of the parties may be nullified by a family court.

Haryana government is considering a law against forced religious conversions and has sought information about such a law already in force in Himachal Pradesh.

Try this question

Q. How forced or misguided religious conversions pose a grave threat to the secular fabric of the Indian Society? Discuss.

The Himachal anti-conversion law

• The state had already enacted a law in 2007 which prohibited conversion from one religion to another by force or fraud. Last year it introduced a more stringent version of the legislation.
• There was a rise in conversions by fraudulent means and unless checked well in time.
• Such practice may erode the confidence and mutual trust between the different ethnic and religious groups in the state.

What does the law say?

• According to the Act, “no person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use of misrepresentation, force, undue influence, coercion, inducement or by any fraudulent means or by marriage; nor shall any person abet or conspire such conversion”.
• The Act does not cover a person re-converting to his “parent religion”.
• It further says that any marriage done for the sole purpose of religion conversion may be declared null and void by a court on a petition by either party.

What happens if anyone wants to convert to any other religion?

• As per the Act, anyone who wishes to convert to any other religion will give a declaration to the district authorities at least one month in advance, specifying that one is doing so as per his/her “own volition or free consent”.
• In fact, even the religious priest who performs the conversion ceremony has to inform the authorities at least one month in advance.
• The district magistrate will then conduct an inquiry regarding the “intention, purpose and cause of proposed conversion”.
• The conversion will be rendered illegal if the authorities are not informed in advance.

The burden of proof

• The Act says that the burden of proof as to whether a religious conversion was not effected through force or fraud lies on the person so converted, or the person who has facilitated the conversion.

Penal provisions

• All offences under the Act are cognizable and non-bailable. The violator can be punished with a prison term ranging from one to five years, along with a fine.
• In case the victim is a minor, woman or member of a Scheduled Caste or Tribe, the imprisonment may extend upto seven years.
• Failure to declare the conversion in advance can also result in imprisonment of upto two years.