This article is written by – Himanshu Shukla, Student (IP University, Delhi)
The Gujarat High Court, prima facie, while hearing a petition filed by Mohammad Hakim challenging the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021 against forced conversion through marriage, observed that the ” Interferes with the intricacies of marriage with a person’s choice of rights, which violate Article 21 of the Constitution of India.” protecting adults entering into inter-religious marriages
A division bench of Chief Justice Vikram Nath and Justice BirenVaishnav observed that the provisions of the law, commonly known as the ‘Love Jihad’ Act, put in “grave danger” to the parties who have entered into a valid inter-religious marriage.
The order was passed by the bench on August 19, though it was uploaded later. Reading the order, it can be seen that the Court has expressed concern over the provisions which make every conversion by marriage illegal.
The Court, after perusing the provisions, observed, “Marriage and consequent conversion is treated as an unlawful conversion attracting penal provisions.”
The court observed that as per section 6 (A) of the 2003 Act, there will be the burden of proof on parties performing the inter-religious marriage, that the marriage was not exalted by any fraud, inducement, or coercion, it places the burden of proof of innocence on the person who converted.
The court said that the Gujarat Freedom of Religion Act 2003 was brought to ban conversion by coercion or inducement or fraudulent means. The amendment to act (2021) brings conversion because of marriage through force or fraud within the purview of the Act.
The Court observed that the explanation given by the Adv. General that this Act deals only with forced conversion to other religions after performing an inter-religious marriage, through greed, force or fraud, “cannot be understood by the common man”.
The High Court held that a common man can hold every conversion on account of inter-religious marriage as prohibited by the Act.
The Court also referred to the Supreme Court’s decision in Shafin Jahan vs Ashokan (Hadiya Case), which held that the right to marry a person of one’s choice was an integral part of the fundamental right under Article 21 of the Constitution.
The Act was challenged as an invasion of individual autonomy, free choice, freedom of religion, and unlawful discrimination and therefore violates fundamental rights under Articles 14, 21, and 25 of the Constitution.
Therefore, we believe that till further hearing, the rigors of sections 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because the marriage by a person of one religion to a person of another religion by force or inducement or fraudulent means and such marriages cannot be said to be for illegal conversion.
The above interim order is granted only based on the arguments made by Advocate General Shri Trivedi, and to avoid unnecessary harassment to the parties to the inter-religious marriage.
Thus, sections like filing of a complaint, punishment of marriage by unlawful conversion, offense by institutions, prior permission from District Magistrate for conversion, the burden of proof on the prosecution, and parties would not apply. Under this bill, all offenses are non-bailable, which can carry a jail term of up to 10 years. While some organizations regard love jihad as a form of inter-religious marriage where the woman converts to Islam by force or deceit, it is not defined under current laws.