Introduction:
The Allahabad high Court, while issuing an order in a habeas corpus writ petition recently, said it is disturbing that one should change one’s faith just for the sake of matrimony when two persons professing different religions can marry under Special Marriage Act which is ‘one of the earliest endeavours towards Uniform Civil Code. The order has come days after another HC judge had observed in another case that religious conversion just for the sake of marriage was not acceptable. The court made the comments after finding that a Muslim woman had converted to Hinduism, and a month later married as per Hindu rituals. Meanwhile, four states MP, UP, Haryana and Karnataka are considering bringing a legislation to deal with cases of “love jihad”.
Special Marriage Act of 1954:
- The SMA is a law which allows solemnization of marriages without going through any religious customs or rituals.
- People from different castes or religions or states get married under SMA in which marriage is solemnized by way of registration.
- The prime purpose of the Act was to address Inter-religious marriages and to establish marriage as a secular institution bereft of all religious formalities, which required registration alone.
- Procedure mentioned: The SMA prescribes an elaborate procedure to get the marriage registered.
- One of the parties to the marriage has to give a notice of the intended marriage to the marriage officer of the district where at least one of the parties to the marriage has resided for at least 30 days immediately prior to the date on which such notice is given.
- Such notice is then entered in the marriage notice book and the marriage officer publishes a notice of marriage at some conspicuous place in his office.
- The notice of marriage published by the marriage officer includes details of the parties like names, date of birth, age, occupation, parents’ names and details, address, pin code, identity information, phone number etc.
- Anybody can then raise objections to the marriage on various grounds provided under the Act. If no objection is raised within the 30 day period, then marriage can be solemnized. If objections are raised, then the marriage officer has to inquire into the objections after which he will decide whether or not to solemnize the marriage.
Hurdles faced by couples:
- The provisions relating to notice, publication and objection have rendered it difficult for many people intending to solemnise 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 keeping a watch on the notice boards of marriage offices and taking down the details of the parties so that they can be dissuaded or coerced into abandoning the idea.
- 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 for communal propaganda.
- 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, say experts, violates the right to equality of those opting for marriage under it.
States against conversion- Analyis:
- If the issue is to address the question on conversion, than there is no point in dealing with question of forced conversion purely in the standpoint of marriage.
- The underline problem is religion conversion is the question here. The idea should be here to address the root cause.
- Any conversion if it is against will should be taken care of and not only conversion related to marriage.
- Madhya Pradesh is tabling the first bill making offences cognisable, non-bailable and punishable with five years imprisonment. Additionally, the district collector must be notified a month before an interfaith marriage is formalised.
- States like Uttar Pradesh, Assam, Haryana and Karnataka have mooted such legislation, a sign that the synchronised actions may have the national BJP leadership’s approval. The bogey of a systematic campaign to hitch Hindu women into marriage with Muslim males, termed derisively as love jihad, is yet to be corroborated by any investigating agency.
- 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.
- 10 states have had passed anti-conversion laws in India. These states are Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Rajasthan, Tamil Nadu and Jharkhand.
- In the case of Tamil Nadu, the law was repealed in 2004. In Rajasthan, the anti-conversion bill passed by the state legislature was returned by the Centre. Most of these laws ban religious conversion by force or allurement.
- The recent push for conversion laws emanates from an amendment made by Himachal Pradesh to its 1968 law.
- No individual should be forced for conversion and the problem with Special Marriage Act, 1954 is that there is no punishment to people to force others for conversion.
All-India anti-conversion law:
- Laws banning conversion from one religion to another began in pre-Independence colonial rule. Several princely states rolled out such laws. After Independence, the first anti-conversion bill was brought out in 1954.
- It was called the Indian Conversion (Regulation and Registration) Bill. Parliament did not pass it.
- Another bill by the name of Backward Communities (Religious Protection) Bill came up in 1960 and one more in 1979 titled the Freedom of Religion Bill was introduced. None were passed by Parliament. Failure of Parliament to pass such a law got Odisha (then called Orissa) to pass the first anti-conversion law in India in 1968.
- In 2015, the Law Ministry wrote to the Home Ministry expressing its view on an all-India anti-conversion law and said the matter is “purely a state subject” and legislating such a law by Parliament would not be in accordance with the tenets of the Constitution.
- This means anti-conversion laws are completely in the domain of the states.
- UCC may be justifies for its own reason but will not address the question of communal harmony and disharmony.
