Throughout history, Marriage and Religion are two widely ingrained institutions becoming paramount in the evolution of every society, culture, and tradition. They have set in stone various rules, morals and values, thus naturally becoming dependent on each other.
They have consequently become important aspects of Human Rights. While both stand as important Human Rights, their clash with each other becomes a topic of freedom and security.
An important debate emerging out of this is the Freedom of Marriage vs. Religious Conversion. While the State is to support freedom of religion and also protect vulnerable individuals, what role does it play when both collide?
Right to Marry:
Every Man and Woman is free to marry whomever they wish, regardless of race, religion, language, nationality, economic status, etc., as long as there is full and free consent and is at the right age. Art.16 of the Universal Declaration of Human Rights[1] provides for this.
Being a signatory of the UDHR, India implements this as a Fundamental Right through an interpretation of Article 21[2] of the Indian Constitution: Right to Life. Everything that fulfils the criteria for a dignified life comes under its interpretation. It thus includes the right to choose a life partner, or in other words, the right to marry.
Applying the above principle, recently various High Courts such as Allahabad High Court, Karnataka High Court, Punjab and Haryana High Court, Delhi High Court etc. have held that right to choose life partner is a fundamental right under Article 21 of Constitution of India.
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Religion- Freedom V. Conversion:
The United Nations has recognized the freedom of religion in the light of Human Rights. According to Art.18 of the UDHR[3], “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his/ her choice.” This principle is inculcated in the Indian Constitution through Art.25 to Art.28. Mainly focusing on Art.25[4] it provides for freedom to choose right from wrong, and to profess, propagate and practise religion as long as there is no harm to public good.
The existence of various religions in the world has developed the problem of religious dominance and conversion. Religious Conversion is where an individual abandons their adherence to one religion and affiliates with another. The problem of forced conversion leads to the struggle for religious liberty which has been ongoing for centuries, and has led to innumerable, often tragic conflicts. While conversion can be out of free consent, there are also forms which provide for “necessary” conversion, such as on marriage; and complete forced conversion, which is a violation of human rights.
Marital & Forced Conversion:
The concepts originate with interfaith marriages- i.e. marrying outside one’s religion. Marital Conversion is religious conversion after marriage as a mandated requirement according to a particular religious belief[5]. Endogamous religious cultures may have certain opposition to interfaith marriage and ethnic assimilation and may assert marital conversion of those who marry into the religion.
Tragically, the issue of forced marriages is a large contributor to forced conversion. While many Indians are open and accepting of different cultures, such is not true when it comes to marriages. The pull to preserving family and tradition remains strong.
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Right to Marry and Religious Conversion: Extent of State Interference
Forcibly marrying someone stands illegal in India. Under the personal laws, a forceful marriage does not stand valid. The law says the validity of the marriage is only when both parties give free consent. Even if a girl was married under force without free consent then under 1 year a suit for nullity of marriage can be filed by her[6].
Civil laws which apply to all the communities which can be attracted on forced marriage in India are The Prohibition of Child Marriage Act, 2006; The Guardian and Wards Act, 1890; The Majority Act, 1875; The Family Courts Act, 1984; and The Protection Women from Domestic Violence Act, 2005. Even under Section 15 of the Indian contract Act 1872, a forceful marriage amounts to coercion. The Indian Penal Code, 1860 also marks forced marriages as a crime under Section 366.
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India’s Anti-Conversion Laws:
Some states have enacted Freedom of Religion Acts, otherwise known as the “Anti-Conversion Laws” to regulate religious conversions that are not purely voluntary. They were first enacted by Orissa and Madhya Pradesh and are presently in effect in eight states and are being considered by a few others[7]. The penalties given for conversions under these laws can range anywhere from fines to imprisonment. Some laws provide stricter punishments for women and children being converted.
According to the 2017 report made by the U.S. Commission on International Religious Freedom[8] states that although these laws do not expressly mention it, they hamper an individual’s right to convert, by favouring Hinduism over minority religions, thus posing a serious threat to Indian secularism.
Recently, the Government of Uttar Pradesh also brough a legislation on this issue by means of an Ordinance called Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020. Under this law forced conversion of religion is an offence punishable with imprisonment for a period from 3 years to 10 years. The constitutionality of the ordinance has been challenged before the Supreme Court and Allahabad High Court both and notices have been issued.
Extent of State Interference:
The interference of State in domestic matters has always been questioned. It is denied that the State has the right to interfere in domestic matters. This protest of State interference was talked about in ‘The Ethics of State Interference in the Domestic Relations’ by Ray Madding McConnell[9], in which he states,
“….love is the most intimate part of a man’s life and therefore should be free from interference by other people.… To attempt a surveillance of one’s love, to supervise its workings, to bind it by chains of custom, or to regulate its behavior according to the opinions and practices of the unfeeling herd is shameless. The heart is an individual’s sacred temple and into its Holy of Hoiles none must penetrate.”
Another important angle of this discussion presented by him was by assuming the function of the state as police, maintaining justice between individuals.
“So long as the individual abstains from injuring the interests of others, he should remain unmolested. So long as the individual’s acts affect only himself, or affect others only with free consent, the State has no right to interfere. No other Individual.., no state, has the right to compel the individual to act or to refrain from acting on the ground that it is for their own good…These are good reasons for remonstrating, advising, instructing, persuading, but not for compelling.”
It is thus clear by philosophy that State interference should be limited in domestic matters. Individual liberty must be kept highest. As long as an individual’s actions affect themselves or by free consent to others, the state shall not interfere.
In the Indian context, one can look at this aspect through the eye of the judiciary. The 242nd Report of the Law Commission on Prevention of Interference with the Freedom of Matrimonial Alliances[10] can be seen in this regard. While the report mainly focused on the issue of honor killings, it focused on the dimensions of the problem, interfaith marriages being one of them. It expressly stated,
“… Inter-caste marriages and handing over punishment to the couple and pressurizing the family members to execute their verdict by any means amounts to flagrant violation of rule of law and invasion of personal liberty of the persons affected.”
Further, the Supreme Court in the case of Shafin Jahan V. Asokan K.M.[11], also known as the Hadiya case pressed this thought. This judgement displayed acceptance of plurality and diversity of different cultures and that Marriage, plurality and individual choices should be zealously guarded from state intervention.
“The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practice, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.”
Three decisions of Supreme Court, Gian Devi vs. Nari Niketan[12], Lata Singh v. State of U.P.[13] and Bhagwan Dass v. State[14] stated the settled position of law that if a married couple is living by their free will, then, nobody including their parents, has authority to interfere with their life together. Especially looking at the Lata Singh judgement, the court stated, “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes… We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence…”Again, this puts liberty of individuals first by protecting it.
Analysis:
From the above, it can be seen that individual liberty must be the highest preference for the state. It must protect the rights of religion and freedom in marriage among consenting adults. India is a democratic country, whose foundations must be strengthened on utmost secularism which should be the goal for central and state governments. A government cannot intervene in one’s choice of a partner. It should be free of religious bias, only then will it be strong.
A state must protect its individuals, but not to the extent that it chokes them in the name of security. For a nation to develop with modern flow of thought, it is important to strengthen individual liberty.
But at the same time the State also has to ensure that under the grab of freedom marriage and religion, individual may not be subjected to force conversion of religion or conversion under duress or misconception. There are various examples when individuals have changed their religion just to marry and after some time it comes out that all that was a fraud to take undue advantage of the boy or girl.
Marriage is considered to be sacred in India, it is not something which is taken very lightly, as it has both moral and legal repercussions. Therefore, to check these miscreants and fraudulent activities the Government should have law balancing the rights of individual and duties of the State. Misuse of any law cannot be a ground to declare it ultra-vires to the constitution, every law is subject to misuse, there are instances of false rape cases too, that does not mean rape should not be an offence, similarly, if anti-conversion laws are subjected to misuse then steps should be taken to sensitize the police and ensure effective implementation.
At the same time the Government should make sure that the state interference should not be so much that this precious right guaranteed as fundamental right get eclipsed in the cloud of regulation.
Authors:
Rajat Rajan Singh
Editor-in-Chief at Law Trend
And
Advocate, Allahabad High Court Lucknow
With the help of:
Sai Kulkarni
Intern
[1] https://www.un.org/en/universal-declaration-human-rights/
[2] Constitution of India-Fundamental Rights-Article21
[3] Ibid, ref.1
[4] Constitution of India-Fundamental Rights-Article25
[5] http://self.gutenberg.org/articles/Marital_conversion
[6] legalserviceindia.comfamily-pressure-of-marriage-on-daughter-and-indian-laws
[7] Library of Congress- State Anti-Conversion Laws
[8] uscirf- Constitutional & legal Challenges Faced by Minority in India
[9] McConnell, Ray Madding. “The Ethics of State Interference in the Domestic Relations” International Journal of Ethics, vol. 18, no. 3, 1908, pp. 363–374. JSTOR, www.jstor.org/stable/2376642. Accessed 29 Dec. 2020.
[10] https://lawcommissionofindia.nic.in/reports/report242.pdf
[11] Shafin Jahan V. Asokan K.M 2018 SCC OnLine SC 343
[12] Gian Devi V. Nari Niketan, (1976) 3 SCC 234
[13] Lata Singh V. State of U.P., (2006) 5 SCC 475
[14] Bhagwan Dass V. State, (2011) 6 SCC 396
