Love Jihad Law: Aggravating the Plight of Interfaith Couples

—Manisha Aswal, LL.M. Candidate, National Academy of Legal Studies and Research, Hyderabad, India.

India is witnessing a surge in the number of anti-conversion legislations. Following in the footsteps of other Indian States like Uttar Pradesh and Madhya Pradesh, the State of Gujarat (‘the State’) implemented an anti-conversion law called the Gujarat Freedom of Religion (Amendment) Act, 2021 (‘2021 Amendment’) on 15 June 2021. The 2021 Amendment amends the Gujarat Freedom of Religion Act, 2003 (‘Act’) to prohibit religious conversion upon marriage.

The Statement of Objects and Reasons of the 2021 Amendment states “the emerging trend in which women are lured to marriage for the purpose of religious conversion” as one of the reasons for introducing the amendment. The 2021 Amendment seeks to deal with love jihad by criminalizing marriage solemnized for the purpose of conversion. The term “love jihad” is used to describe a right-wing theory which claims that Muslim men use marriage as a way to convert Hindu women to Islam. Before the amendment, the Act prohibited any person from converting the religion of another “by use of force, allurement or by any fraudulent means.”[1] However, the amendment added conversions “by marriage” to the category of prohibited conversions and now prescribes minimum imprisonment of three years extending up to five years to any person who converts the religion of another by marriage.^[2] Further, the contravention in respect of a woman or minor attracts a higher punishment of a minimum of four years extending up to seven years.[3]

Within three days after the new law came into force, the Gujarat police registered its first case under the amended Act for the offence of forced religious conversion through marriage. Indubitably, the State must penalise fraudulent and forceful conversions. However, the prohibition imposed on “conversions by marriage” is problematic. This ambit of prohibition is quite broad in nature as it takes within its fold every case of conversion upon marriage irrespective of whether it involved any force or fraud. If the religion of a person changes as a consequence of their marriage to a person from a different religion, the latter can be held liable under the Act. Though the legislative intent is to prevent forcible and fraudulent conversions by marriage, the 2021 Amendment casts a shadow of criminality over all interfaith marriages. One of the reasons why many interfaith couples seek to convert their religion is to escape the thirty-day notice period provided under the Special Marriage Act,1954 (‘SMA’) which regulates interfaith marriages in India. In respect of interfaith marriages, the SMA mandates the publication of a notice of intended marriage^[4] and inviting of objections from the general public.^[5] It stipulates thirty days for raising objections against the solemnization of an interfaith marriage.^[6] Therefore, under the fear of consequences that may arise out of the public notice and objections, interfaith couples choose to change religion.

In India, interfaith couples often experience the wrath of their families for marrying outside their communities. For instance, an interfaith couple had to file a plea before the Court to seek protection from their families who were causing them unnecessary trouble. The 2021 Amendment aggravates the situation such interfaith couples. It empowers family members of the convertee including parents, brother, sister, or any other person related by blood, marriage or adoption to lodge a complaint against the spouse of the convertee.^[7] In cases where a person converts upon marriage against the wishes of their family or relatives, the law is likely to be misused. The resentful or displeased families might cause hardships for the inter-faith couples by filing criminal charges. This would result in unwarranted harassment of interfaith couples. Moreover, the amendment places the initial burden of proof on the person accused of causing the conversion.^[8] It presumes the accused to be guilty of causing the unlawful conversion. In other words, every religious conversion in question is prima facie taken to be illegal and it is for the accused to prove that the conversion is lawful and valid. To illustrate, a man was arrested under the anti-conversion law of the State of Uttar Pradesh after he tried to get his marriage with a Hindu woman registered. He was taken to the police station by persons belonging to a right-wing group who prevented the couple from proceeding with the marriage registration formalities.^[9]

The Apex Court of the country has recognised the right of an individual to marry a person of their own choice as a facet of individual liberty in numerous cases.^[10] In Shafin Jahan v. Asokan K.M., the Supreme Court opined that matters of faith cannot affect the right to choose a life partner. The latter forms an inherent part of the principles of individual liberty and autonomy. The Court emphasised that intimate choices do not require social approval and therefore law cannot be used to impose limitations on an individual’s ability to choose faith or partner. The anti-conversion law as long as it penalises conversions by marriage that are carried out with free consent violates the right to choose a partner of choice. It also deters religious conversions by reason of marriage and creates a chilling effect on the freedom of religion. Thus, it encroaches upon the right to freedom of conscience and the right to personal liberty guaranteed under Article 19 and Article 21 of the Constitution of Indian respectively.

An adult individual should be free to choose whether they wish to convert or marry a person of another faith without any social pressure or interference of the State. However, the Act in its present form has the potential of becoming a tool for harassing interfaith couples. It can be abused to criminalise inter-faith marriage which involves the religious conversion of either of the spouses.

Suggested citation: Manisha Aswal, Love Jihad Law: Aggravating the Plight of Interfaith Couples, Int’l J. Const. L. Blog, July 6, 2021 at: http://www.iconnectblog.com/2021/07/love-jihad-law-aggravating-the-plight-of-interfaith-couples.

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[1] Gujarat Freedom of Religion Act, § 3 (2003).

[2] Id., § 4A.

[3] Id.

[4] Special Marriage Act, § 6(2) (1954).

[5] Id., § 7(1); In “Smt. Safiya Sultana v. State of U.P.” Habeas Corpus No. 16907 of 2020, the Allahabad High Court has held that the requirement of publication of notice of intended marriage and inviting objections under the SMA as directory in nature. The notice has to be published only at the request of the parties to the intended marriage and not otherwise.

[6] Id., § 7(2).

[7] Supra note 2, § 3A.

[8] Id., § 6A.

[9] Id.

[10] E.g., Shakti Vahini v. Union of India, (2018) 7 SCC 192; Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368.