Allahabad HC dismisses case alleging love jihad, upholds the right to personal liberty of mature adults but UP pushes ordinance
Unfortunately, it is left to the courts these days to defend personal liberties of citizens. For politics brazenly tramples them. And given the implications of proposed legislations by certain State Governments to criminalise inter-faith marriages, ostensibly to stop conversions in the guise of love, the Allahabad High Court did some tough talking. Denouncing a previous single-judge bench decision that declared religious conversions only for the sake of marriage as unacceptable, it said such a ruling was “bad in law” because it overrides the right to life and personal liberty of mature adults. Defending the marriage of a Hindu girl to marry a Muslim man, who converted to Islam voluntarily and whose parents filed the case, the Bench made it clear that two mature individuals were entitled to a freedom of choice under Article 21 of the Constitution. No doubt the court foresaw what attributing ulterior motives to every inter-faith relationship and subjecting each to societal perception could do. For example, even if the partners were to choose conversions on their own, could their disagreeing and vindictive families stop them with a new love jihad law? The court even warned how such obstructive norms on inter-religious marriages could affect “unity in diversity.” And then came its most scathing observation that targetted the Islamophobia implicit in all such proposed legislations: “We fail to understand that if the law permits two persons even of the same sex to live together peacefully, then neither any individual nor a family, nor even the State can have an objection to the relationship of two major individuals who out of their own free will are living together.” And by consistently highlighting that adults were entitled to live free without being monitored by societal malice, the court sought to douse the fire around the growing love jihad campaign. Of course, the ruling did not deter the Yogi Adityanath Government from issuing a punishing ordinance the same day to check forced conversions and marriages based on them.
The worst affected will be women, who continue to fight against and are killed by the devil called family or community honour, the terms of which are framed for the convenience of a patriarchal society. If as an adult, she loses the right to choose her kind of life, nothing could be more disempowering. And laws on love jihad anyway are built on the assumption of young women being impressionable than decisive. For example, both the UP ordinance and the Madhya Pradesh Government’s Dharma Swatantrya Bill 2020, make coercing an individual into marriage a punishable offence, non-bailable in nature, deserving of a five-year rigorous punishment. Question is how would you prove coercion if the girl in question is already hostage to her dissenting family and cowering in fear? How would she give her independent opinion? This is why the Supreme Court in the Kerala love jihad case separated the 24-year-old girl from both her family and husband before respecting her choice. The Kerala High Court had handed over Hadiya’s guardianship to her parents, who locked her down for 11 months and discontinued her studies at a college in Salem, fearing her husband Shafin was indoctrinating her. The apex court appropriately prioritised individual freedom of an adult while separating the particularities of whether all of her choices were born of her freewill or were they imposed, given her supposed “conversion”, or indeed if she had the ecosystem to decide for herself, free of pressure and insinuation. That’s why it freed Hadiya from her parents, even kept her away from her husband. And in the end found that her relationship was genuine. It proved that the rights of two adult people to be together cannot be infringed upon on the ground of societal taboos, an alleged threat perception or external bogeyism. But even if the court respects the couple’s choice, where is the security guarantee? For example, the UP ordinance says that in case someone wishes to convert after marriage voluntarily, s/he will have to apply to the district magistrate two months in advance. In MP, that sanction has to be taken from a collector. In a society that is yet to come out of the revenge code of honour killings, would not a public declaration of love and conversion invite a hitback? We just saw the backlash following an advertisement campaign by a jewellery brand of an inter-faith marriage, where none of the partners were shown as changing their religion. If that had to be taken down, imagine what could happen to two people making independent choices. It is not that there aren’t laws against forced conversions. Section 366 of the Indian Penal Code criminalises any act of kidnapping, abducting or inducing a woman to marry by force and punishes such an act with imprisonment for up to ten years. Besides, according to the Government’s own admission in Parliament, the term “love jihad” had not been defined under any law and no case had been reported or registered by any Central agency. Where then is the need for a law in the first place? Also, doesn’t a love jihad law go against the grain of the BJP’s pet agenda of the Uniform Civil Code, which would bring all inter-faith marriages under a common set of rules? Of course, nobody wants to see reason when the politics of polarisation has completely taken over the collective mindspace. Even now, inter-faith marriages are few and far between. According to the India Human Development Survey, only about five per cent of all marriages are inter-caste and inter-faith relations are even fewer. A 2016 survey by Social Attitudes Research for India (SARI) found that the majority of respondents opposed inter-caste and inter-religious marriages. In Delhi, about 60 per cent of both Hindus and Muslims were against them. Then there are legal challenges for ordinary couples trying to get a marriage registered under the Special Marriage Act, with courts insisting on all sorts of conditions. Love is never under discussion.
