The latest order involving inter-faith marriage was issued by a Division Bench of Justices Sujoy Paul and Prakash Chandra Gupta. The bench was hearing a batch of seven petitions that challenged several sections of the Madhya Pradesh Freedom of Religion Act, 2021, for violating fundamental rights, such as right to privacy and equality and freedom of religion and speech. In this case, the petitioners argued that this Madhya Pradesh law gives the state authorities “arbitrary powers”. They said that religious belief is a personal matter and every citizen has the right not to disclose their religion or their “intention to switch over to another religion”.
The petitioners also invoked decisions by Gujarat and Himachal Pradesh High Courts staying similar provisions in these states. However, the government contended that this law has not been misused by anyone and that the Supreme Court had upheld a similar anti-conversion law in Madhya Pradesh in 1977.
The Madhya Pradesh Freedom of Religion Ordinance was promulgated in January 2021 and the Freedom of Religion Act, 2021, came into effect in March 2021. The main provisions of the Madhya Pradesh Freedom of Religion Act (MPFRA) 2021 are:
- Section 5 of the MPFRA, 2021, prohibits unlawful conversion from one religion to another by use of misrepresentation, force, undue influence, coercion, any other fraudulent means, allurement, or promise of marriage.
- Violators face between one year and five years of imprisonment.
- If the person who is converted is a child, a woman, or a person belonging to Scheduled Tribe or Scheduled Caste, the punishment varies from two years to 10 years, with a fine of Rs 50,000.
- The punishment for mass conversions is five to 10 years in prison, with a penalty of Rs 1 lakh.
- Cases under the Act are cognizable which means an arrest can be made without a warrant and is non-bailable.
- Complaints can be registered by the victim, the victim’s parents or siblings or anyone else, including a guardian with permission from the local court.
- The complaints will be investigated by police officers of the rank of sub-inspector and above.
- For a religious conversion to be valid, the law requires a 60-day prior “declaration of the intention to convert” to the district magistrate by the individuals as well as the priest carrying out the conversion. It’s only after this, that a couple from different religions can be legally married.
- Failure to notify the state the intent to convert will render the wedding null and void, and an individual can be prosecuted for fraudulent conversion on promise of marriage.
- A priest who fails to notify the government can be punished with imprisonment from three to five years with a minimum fine of Rs 50,000.
The Court noted that in August 2021, the Gujarat High Court had granted an interim stay on a 2021 anti-conversion law that prohibited marriages in which a person changed her faith unless the person who was converting her showed that the marriage had not been affected through coercion or allurement. Such a provision infringed upon the fundamental right to life of an individual.
The Division Bench of the Gujarat High Court in Jamiat Ulema-E-Hind Gujarat vs State of Gujarat (2021) consisting of Chief Justice Vikram Nath and Justice Biren Vaishnav passed an interim order, the relevant portion of which reads: “We are therefore of the opinion that, pending further hearing the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A shall not operate merely because of a marriage is solemnized by a person of one religion with a person of another religion without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion”.
The Court further noted that the apex court in a catena of judgments poignantly held that if two adults decide to solemnize marriage, it is their personal choice which is integral to Article 21 of the Constitution of India. In Lata Singh vs State of Uttar Pradesh and Ors (2006) this right of adults was duly recognized by the apex court.
Way back in 1962, the Constitution bench of the Supreme Court in Sardar Syedna Taher Saifuddin Saheb vs State of Bombay held that “a person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious belief, by the State or by any other person”.
The Himachal Pradesh High Court in another judgment expressed its inability to give its stamp of approval to the impugned provisions of the enactment where a citizen was required to disclose his religion and asked to inform the authorities about his intention to change his belief or religion. The provision directing the converter to give notice in advance to the district magistrate about changing his religion could not sustain judicial scrutiny. The belief of a citizen regarding the religion is held to be a personal belief of the citizen. Interference of the State in this personal arena was disapproved. The High Court held that the right to privacy of a citizen and the right to change the belief cannot be taken away under the garb of maintaining “public order”. If this is permitted, it will open a Pandora’s box and may lead to conflicts between the rival outfits and groups.
The Court held that in the judgment of the Supreme Court in Lata Singh (Supra), Laxmibai Chandaragi B. (Supra), it was recognised that marriage lies within a core zone of privacy of a citizen which is inviolable. The right to marry a person of choice is held to be integral to Article 21 of the Constitution. In KS Puttaswamy (supra), the nine-judge bench has drawn the curtain on this aspect by holding that the family, marriage, procreation and sexual reorientation are all integral to the dignity of the individual. An individual has a fundamental right to decide the form of expression which includes his right to remain silent. Silence postulates a realm of privacy. The right to remain silent includes the right to decide the preferences on various aspects of life, including the faith one will espouse. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.
The Himachal Pradesh High Court in Evangelical Fellowship of India (supra) declared the offending statutory provision as illegal wherein a citizen was required to inform the authorities about his wish to change the religion. Considering the aforesaid judgments, the Court opined that a strong prima facie case is made out by the petitioners for grant of interim protection in relation to marriage of two adult citizens on their volition and against any coercive action for violation of Section 10 of the Act of 21. “Section 10 makes it obligatory for a citizen desiring conversion to give a declaration in this regard to the district magistrate which in our opinion ex facie, is unconstitutional in the light of previous judgments of the Court,” the Court said.
Further, in November 2021, the Allahabad High Court held that marriage registrars cannot refuse to register marriages on the grounds that the couple had not obtained the approval of the district authority before converting, as mandated under the state’s anti-conversion law. The Court also clarified, that “the consent of the family or the community or the clan or the State or Executive is not necessary, once the two adult individuals agree to enter into a wedlock which is lawful and legal. Their consent has to be piously given primacy, with grace and dignity.”
In October 2022, the Kerala High Court held that the religion of husband and wife is not to be considered a detrimental factor while registering marriages in the state. Justice PV Kunhikrishnan passed the order while hearing a petition moved by a Hindu man and a Muslim woman who were not allowed to register their marriage according to Kerala Registration of Marriages (Common) Rules, 2008. They were married as per Hindu rituals. The petition stated that the local registrar refused to register the marriage as per the Kerala Registration of Marriages (Common) Rules, 2008, on the ground that it was not conducted as per any personal law. Citing this reason, the registrar told the couple to register their marriage as per the Special Marriage Act, 1954, which is for interfaith couples.
The judge further noted that registrars should not underscore such technical defects since the Registration of Marriages (Common) Rules were formulated to protect the rights of the women and the children born in that marriage. “The respondents, while registering the marriage as per the Rules 2008, should remember that our country is a secular country giving liberty to all citizens to adopt their own religion and to follow their own rites, customs, and ceremonies,” noted Kunhikrishnan. He added: “Therefore, simply because the father or mother of one of the parties to a marriage belongs to a different religion, it is not a reason to reject an application submitted for registration of the marriage as per the Rules, 2008.”
—By Adarsh Kumar and India Legal Bureau