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Regulating Matrimonial Relationships of Consenting Adults Will Be Unconstitutional

Recently, several states including Uttar Pradesh, Madhya Pradesh, and Haryana have announced enacting a law prohibiting what it has been commonly referred- "Love Jihad"

While a number of state governments are discussing to curb "love jihad", Madhya Pradesh is tabling the first bill making offences cognizable, non-bailable and punishable with "five years" imprisonment. Additionally, the District collector would require to be notified a month before an interfaith marriage is formalized.

Lawyer and Managing Partner of OP Khaitan & Co Gautam Khaitan has called appropriation of law to regulate interfaith marriages unconstitutional. "It is the matter of two consenting adults and it is guaranteed by the Constitution of India. Hence, any act done by the state to offend the constitutional guarantee of individuality and basic freedom is unconstitutional," he said.

The concept of Love Jihad first rose to public attention in 2008-09 when Hindu Right groups claimed Muslim men allegedly converting Hindu women to Islam feigning love. While there is no legal basis for the concept of Love Jihad, several states have decided to legislate interfaith to regulate inter-faith marriages.

"A few years back, the Supreme Court decriminalized Section 377 IPC in Navtej Singh v. Union of India. Paradoxically, some of our states are now planning to control woman's freedom through anti-love jihad laws. And this when the Union Ministry of Home Affairs had on February 4, 2020 told the Lok Sabha that "there was nothing defined as "love jihad" under current laws in the country. However, the term is frequently used " he added.

Recently, a jewellery brand Tanishq pulled an advertisement featuring a baby shower for an inter-faith couple after it was vociferously criticized by Hindutva supporters on social media for allegedly promoting "love jihad". The company said it had made the decision "keeping in mind... the well-being of our employees, partners and store staff".

Earlier this year, in a written response, the minister quoted "Article 25 of the Constitution provides for the freedom to profess, practice and propagate religion subject to public order, morality, and health. Various courts have upheld this view including Kerala High Court."

 Mr Khaitan finds flaws in the concept as Firstly, there is no legal sanction to political terms such as love jihad, Secondly, there can be no legislation based on an extra-legal concept and thirdly, legislative intervention, if any, in marriages involving consenting adults will be clearly unconstitutional and to the detriment of adult citizens fundamental rights to freedom of conscience and religion (Article 25 of the Constitution) as well as their fundamental rights to privacy and liberty (Article 21).

In any case, till now domain of matrimony is occupied by separate laws governing weddings that take place under religious traditions, and the Special Marriage Act that enables a secular marriage and under the Special Marriage Act, secular marriage includes inter-faith marriages

The reason behind such a proposal to enact a law prohibiting Love Jihad seems to be:
  • Many state Ministers spoke about marriages as if they were not a matter of personal choice
  • Investigation into marriages that purportedly raised such a suspicion also failed to find any substance in the allegations.

  • The immediate context for these leaders to curb inter-faith marriages is a recent Allahabad High Court judgment, which frowned upon religious conversion solely for the purpose of marriage. It declined to intervene on a writ petition seeking police protection for a couple, noting that the bride had converted from Islam to Hinduism solely for the purpose of marriage.

  • It had found such an expedient conversion unacceptable, citing a similar 2014 verdict, which questioned the bonafides of conversions without change of heart or any conviction in the tenets of the new religion.

Gautam Khaitan said that the court's ruling mean the conversion should not become a device. It is useful as a principle that inter-faith couples retain their religious beliefs separately and opt for marriage under the Special Marriage Act. But, this principle cannot be used to derogate from personal choice. Also, it should not be used to interfere in the individual freedom to forge matrimonial alliances

The Allahabad High Court passed a two-page order dismissing the petition, apparently on the basis that the conversion by the woman had taken place only for the purpose of marriage. The Learned Single Judge of Allahabad High court has relied on an earlier judgment of the same Court, titled Smt. Noor Jahan Begum @ Anjali Mishra v. State of U.P. & Ors dated 16th December 2014 and while embarking on a wide-ranging discussion on the validity of the conversions, and the subsequent marriages, under Islam, and concluded that the conversions by the women in each case could not be termed "bona fide" or "valid". Although, the legality of her conversion was not the issue before the court.

While these observations by the Allahabad High Court have helped those who want to stop Hindus converting for marriage, other high courts have gone even further by actually suggesting that laws be enacted to deal with such conversions.

Gautam Khaitan said that although many states have declared their intention to enact laws against "love jihad" but when the fear of physical harm has failed to deter young women from marrying out of choice, it appears unlikely that the fear of laws will do so. In any case, any action regulating marriages based on baseless allegations will be violative of Article 14, Article 21, and Article 25 of Constitution of India. "If such an idea becomes a law it will be medieval in nature, which might blur the image of a secular and free India.

Criminalizing interfaith marriages goes against the principle of letting consenting adults make their own choices in life, marriage, faith, divorce, livelihoods, etc. If such bills become law, that would hinder the basic freedom of an individual and we will be heading down a slippery slope of a state looking to restrict more and more of our democratic freedoms. Mr Khaitan, wonders how can something which goes against the fundamental tenets of the country's Constitution become a law?

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