An Insight through the Special Marriage Act and personal laws concerning Interfaith marriages in the country
Introduction
According to the Gujarat High Court, a plain reading of the anti-conversion laws, also known as the “love jihad law,” suggests that any conversion that occurs after an interfaith marriage would constitute an offense, and both the marriage itself and the conversion would be viewed as illegal.This Insights of Government and Judiciary is an advent of the Anti- Conversion Laws which would end the Plight of Forceful Interfaith Marriages in India. Due to this legal development, it is significant to trace the legislation governing interfaith marriages in India to help our readers understand the legality of this issue. In this article we would be dealing with The Special Marriages Act, Personal Laws, Forceful Conversions and Recent Developments.
The Special Marriage Act: The Legal Intricacies Proving Fatal
In 1954, the Special Marriage Act (SMA) was passed as a result of several changes to India’s personal laws. It was intended as a law to regulate unions that could not be formally dissolved in accordance with religious traditions, which effectively meant interfaith or inter caste unions.According to the Indian Human Development study from 2011–12, estimates from the study imply that an additional 2.2% of marriages are interfaith.Even after a legislation which protects the rights of Interfaith marriages in India the rate of interfaith marriages is so low. There are certain anomalies to the implementation of the act.
In India, there are a lot of hurdles for an Interfaith couple. There’s a huge parental resistance, extreme social ostracism, and risk of harassment from vigilante groups. Incidences of honor killings are of no rarity in India and because of these reasons putting out a notice, inviting objections, and sending it to the couple’s parents creates a risk for the safety of the couple. In this notice all the major details like name, address, occupation, etc. of the couple are mentioned which makes it harder for the couple to get married privately and avoid resistance from society and this also violates the Right to Privacy. This is not a condition for marriage under personal laws and this is why this act is discriminatory in nature.
Fundamental Resilience; The Right to Choose a Partner
In the case of Salamat Ansari and others v. State of Uttar Pradesh, which was ruled on November 11, 2020, the right to choose a spouse as a basic right was recently acknowledged. The Allahabad High Court overturned previous decisions it had made regarding interfaith marriages in which it had been said that “conversion for the purpose of marriage is unacceptable and it could not be considered as a righteous pronouncement.” The Bench stated once more, “Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner, and right to live with dignity as enshrined in Article 21 of the Constitution of India.”
Religious Conversions: The Breakthrough
The difficulties experienced by interfaith couples who desire to get married have been made worse by the current trend of state laws combining anti-conversion with interfaith marriage. The state has the chance to regulate an individual’s personal decision as a result of the legislative effort to require more and more statements and justifications from people who marry outside of their religious convictions. It also restricts the extent of religious freedom as outlined in Article 25 by setting limitations on conversion for marriage-related purposes. While anti-conversion laws, euphemistically called in some States as laws on ‘freedom of religion’, have always sought to criminalize conversions obtained through fraud, force or allurement, the recent enactments or amendments have created “conversion by marriage” as one of the illegal forms of conversion. In 2021, both the Gujarat and Allahabad High Courts have watered down the provisions relating to inter-faith marriages in the anti-conversion laws of their states.
In August, the Gujarat High Court granted an interim stay to the provisions prohibiting conversion by marriage in amendments to the Freedom of Religion Act, 2003. The court said that this would interfere with the right to the choice of an individual guaranteed under right to life in Article 21 of the Constitution.
The Recent Development
The Supreme Court has voiced significant worry about the alleged “rampant conversions” taking place in the nation while hearing a petition from Ashwini Upadhyay. Upadhyay’s plea had previously been denied by the same court, presided over by Justice Fali S Nariman, on the grounds that Article 25 also permits the “propagation” of religion. Even if the data that is currently available rarely supports any potential demographic change through conversion, as promoted by the Hindu groups, the topic is now being discussed on a regular basis. Religious conversions may appear to many Indians to be unnecessary, puerile, and a negation of the very concept of respect for both religions as well as the followers of such religion, according to the Law Commission of India, which was presided over by Justice P.V. Reddy, in report No. 235, dated December 27, 2010. However, the Constitution’s guarantee of religious liberty does not necessarily allow for the negation of the right to practice one’s chosen religion, including conversion when necessary.
The administration has yet to respond to a writ case that was filed with the Supreme Court more than a year ago, asking for some of its provisions to be struck down. The petition sought to invalidate SMA sections 6 and 7, which require publishing of the public notice, on the grounds that they are arbitrary and unjustified.
The numerous facets of society support the recent rulings by the Allahabad High Court and Gujarat High Court, which allow both men and women to freely pick their spouse and marry outside of their religion. However, there is still a need to investigate whether recent state legislation and ordinances are constitutionally acceptable because they violate the right to freedom of religion by attempting to outlaw all interfaith marriages. As a result, the judiciary is required to uphold the Constitution’s democratic principles.
On a positive note, there has been growing social awareness and support for interfaith couples in India. Many individuals and organizations, including civil society groups and NGOs, have stepped forward to provide legal aid and assistance to couples facing challenges due to their interfaith marriages.State High Courts and the Supreme Court of India have delivered judgments in favor of couples, upholding their right to marry according to their choice and protecting them from harassment or threats.
Conclusion
The biggest threat to our Constitution, according to Jacob F. Roecker, is our ignorance of it. The anti-conversion laws passed by a number of states highlight particular features of the activities that go against this country’s secular ideals. In a nation where the rule of law and the Constitution are upheld, it is hard to conceive that such ordinances or regulations could be passed by the state legislature. Unless the constitutionality of a law is questioned, the judiciary is powerless to intervene in matters of conversion of marriage or any other legislative role.