The Allahabad High Court on Thursday observed that the consent of the family or the community or the clan or the State or Executive is not necessary, once two adults agree to enter into wedlock which is lawful and legal. Their consent has to be piously given primacy, with grace and dignity.
Hearing a batch of petitions moved by interfaith couples, a single-judge bench of Justice Suneet Kumar observed that the Marriage Officer/Registrar cannot refuse to register a duly solemnized marriage, and/or, insist on a conversion approval of the district authority. The Court heard 17 petitions pertaining to interfaith marriage contracted by petitioners who claim to be major and one of the parties to the marriage has converted to the religion/faith of his/her partner. The petitioners apprehend threat to their life, liberty and well-being and approached the High Court
The Standing Counsel for the State submitted that if conversion is for the purpose of marriage, approval of the District Magistrate has not been obtained before conversion, and/or, contracting marriage, such marriage cannot be registered without the district authority making an enquiry, as to whether, the conversion is voluntary or not. In other words, the State Counsel submitted that the petitioners are not entitled to any relief from this Court, they should approach the competent district authority and obtain approval, in the first instance, with regard to their conversion. The writ petitions are liable to be dismissed.
The petitioners’ counsel submitted the argument advanced by the State counsel is misconceived. Citizens have a right to choose their partner and faith; the conversion of religion/faith, followed by marriage under the personal law is on free will without coercion, threat or inducement. Interference by the State or by the private respondents would tantamount to encroaching upon their constitutional right to freedom, choice, life, liberty and to live life on their own terms as man and woman. The prior approval of the district authority followed by registration of marriage is not sine qua non before conversion and marriage, added the Counsel for the Petitioner.
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While considering the petitions, the Court said,
“Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the State is to safeguard the ability of the individuals to make decisions, the autonomy of the individual and not to dictate those decisions. In protecting consensual intimacies, the Constitution adopts a simple principle: the State has no business to intrude into these personal matters.”
The Supreme Court, as well as, other Constitutional Courts have time and again realized that in a society undergoing rapid social and economic change, static judicial interpretation of the Constitution would stultify the spirit of the Constitution.
The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters, the Court held.
It is clarified by the Court that the factum of marriage and the registration of marriage are entirely distinct and different. The registration merely evidences the factum of marriage between the parties, whereas, legality of the marriage, whether void or voidable, is for the aggrieved party to settle in accordance with the law before the designated forum/court.
“The duty of the court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. The choice of a partner, whether within or outside marriage, lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith,”
-further observed the Court.
“The Constitution as a living instrument, which enunciates eternal values for Indian society, possesses the resilience necessary to ensure its continued relevance. The Constitution is not cast in stone to make it rigid beyond change. The features that are basic to the Constitution are fluid adapting and precisely responding to the changing social-cultural milieu in its ability to allow succeeding generations to apply the principles on which it has been founded, to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering. The Constitution is in the realm of philosophy rather than grammar. The Constitution has undergone change (over 100 amendments) in 70 years since 1950, in conformity with the changing social milieu reflecting the aspiration of the Indian people.”
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In its order the Court went on to observe that the law would be assessed not with reference to its object but on the basis of its effect and impact on the fundamental rights based on the test of fairness and reasonableness. The Unlawful Conversion Act, 2021, per se, does not prohibit interfaith marriage. The Marriage Registrar/Officer, however, lacks power to withhold the registration of marriage, merely for the reason that the parties have not obtained the necessary approval of conversion from the district authority. Such an approval is directory and not mandatory. If interpreted otherwise the Act would not satisfy the test of reasonableness and fairness, and would fail to pass the muster of Article 14 and Article 21.
Therefore the Bench allowed the petitions by passing the following orders:
(i) The State respondents and the private respondents are restrained from interfering with the life, liberty and privacy of the petitioners to live as man and woman;
(ii) The police authorities of the respective districts shall ensure the safety of the petitioners and provide protection to them, if demanded or needed;
(iii) The Marriage Registrar/Officer of respective districts are directed to forthwith register the marriage of the petitioners, without, insisting/awaiting approval of the competent district authority with regard to conversion of faith;
(iv) It will be open to the aggrieved party, in the event of fraud and misrepresentation, to take recourse of law, both – criminal and civil, including, annulment of marriage before the competent forum;
(v) The Government of India to consider the constitution of a Committee/Commission for implementing the mandate of Article 44, as directed by the Supreme Court;
(vi) The State Government to issue appropriate Government Order to the Marriage Registrar/Officer, District Authority, to comply and implement this order;
(vii) It will be open to the private respondents to seek modification/recall of this order in the event of being affected by the order;
(ix) The Registrar General of this Court is directed to supply a copy of this order to –
(a) Department of Justice, Ministry of Law and Justice, Government of India, New Delhi.
(b) The Chief Secretary, Government of Uttar Pradesh, Lucknow.