A critical analysis of the validity of conversion for marriage in India By– Durgaprasanna Y & M Dhananjay Varma

A critical analysis of the validity of conversion for marriage in India

Authored By– Durgaprasanna Y & M Dhananjay Varma

 

 

INTRODUCTION

 

Overview

India is a democratic country. It is a secular nation. Every person has been provided with rights and responsibilities that need to be followed. Every person has the right to life and personal liberty as stated under Article 21 of the Indian Constitution.

 

A person is free to practise any religion they choose in India, or to convert to one they already practise. However, the state now forbids marriages resulting from conversion to another religion, which is against the fundamental tenet of secularism.

 

Statement of the problem

Conversion of religion for marriage through judicial pronouncements was not acceptable in many instances, converting religion only for the reason of religion is not valid. Few states impose restrictions on conversion violating the fundamental rights of an individual such as right to freedom of religion.

 

Relevance of the Study

As law has been evolving along with changing rules of the society, it tends to revolve around society for its fundamental changes.

 

Conversion of religion only for the purpose of marriage has been held to be unethical by various judicial decisions. It destroys the diverse culture of the nation and demolishes the secularism of the nation and its foundation.

 

Literature Review

Special Marriage Act & Anti Conversion Laws of India

V Kapoor, P Dwivedi - Issue 2 Int'l JL Mgmt. & Human., 2022

There are a vast number of religious differences and problems for a nation that prides marriages in India. Though interfaith marriages are a relatively limited proportion of all marriage.

 

Diversity and the constitution in India: what is religious freedom

LD Jenkins - Drake L. Rev, 2008

religious freedom in contemporary India-the rights of religious minorities, and the right to convert … growth of minority communities via marriage or conversion. The Christian community, Islamic and Hindu community being a part of the religious sects of India.

 

 

Objectives

To understand the scope of conversion of religion for marriage in India .

To analyse the reasons for anti- conversion laws in different states of India.

To examine the survey conducted by questionnaire among the population of India.

 

Hypothesis

Conversion of religion for marriage in India should be accepted.

 

Research Methodology

The methodology used is empirical method along with secondary data usage. The main resource used for interpretation was usage of google form questionnaire to conduct a survey method. Few of  the information and sources acquired is from secondary sources through books, library, online sources and encyclopaedia.

 

Research Questions

1. What is referred to as conversion of religion for marriage in India ?
2. Why are the states imposing restrictions on conversion of religion for marriage? What are the various state laws limiting this provision?
3. How is the social perspective on conversion of religion for marriage?

 

1. Research Question

1. What is referred to conversion of religion for marriage in India ?

India is a secular society, and the Indian Constitution protects everyone's right to freedom of conscience and religion. A person is free to practise any religion they choose in India, or to convert to one they already practise.

 

 Conversion for marriage occurs when a person voluntarily "adopts" a different religion in order to wed someone of a different religion in accordance with any religion's personal law. Every person has the right to freedom of conscience and the freedom to profess, practise, and spread their religion, according to Article 25 of the Constitution. It is important to remember that each person selects their own level of conscience and religious freedom. The core of secularism is stated in this clause. However, it has been observed that the patriarchal mindset of society does not socially accept conversion or interfaith marriage.

 

Judicial pronouncements in the conversion of religion for marriage.

The Supreme Court erred when it cited the Rev. Stanislaus v. State of Madhya Pradesh case[1] in 1977 and declared that the freedom to convert did not fall under the category of the right to spread religion. In the case of Smt. Sarla Mudgal and Others v. Union of India, (1995)[2] the Supreme Court determined conversion for marriage to be illegal, notwithstanding the fact that everyone has the right to embrace a different faith. The sole justification for adopting a religion—either to escape the wife or to marry several wives—was not deemed to be a legitimate motive.

 

The Allahabad High Court dismissed the writ petition filed by the couple seeking police protection in a case that was similar to theirs, Noor Jahan Begum v. State of Uttar Pradesh (2014).Justice Tripathi observed, “The court has perused the record in question and found that the petitioner has converted from her religion on 29.6.2020 and just after one month they have solemnized their marriage, which clearly reveals to this court that the said conversion has taken place only for the purpose of marriage.”

 

 The court reasoned that since the couple's conversion from Hinduism to Islam was solely for the purpose of marriage and had no prior knowledge of or belief in the religion, it was not a good law.

 

Additionally, society has recently prioritised the adoption of special legislation regarding marriage. The Supreme Court ruled in Shafin Jahan v. Ashokan KM, (2018) [3]that Hadiya is free to convert to a different religion and wed anybody she chooses.

 

The High Court determined that it was beyond of its jurisdiction to evaluate Hadiya's reasonable and moral course of action as an adult after analysing the pertinent facts and circumstances. She can choose anybody she wants to marry at any time. Based on her appearance and testimony, the Supreme Court found that she had not been a victim of either compelled conversion or unlawful incarceration. The writ of habeas corpus was not necessary in this particular case, according to the court. The radicalization of society and other matters that the judiciary cannot become engaged in received special attention from the Court. Also, if there is illegal conduct occurring somewhere, the law enforcement agency must step in and take appropriate action.

 

The Dr. Palash Sarkar vs State Of West Bengal & Ors [4], a recent case, The Court displayed the "Doctrine of Pith and Substance" and noted that all issues relating to the approval of marriage and religious conversion in regard to private or municipal legislation are outside the purview of the judiciary after carefully reviewing the pertinent facts and circumstances. Furthermore, it was claimed that the absence of pertinent legislation prevented people from exercising the most fundamental right protected by Article 21 of the Indian Constitution. The judiciary's power is limited to deciding whether a piece of legislation is valid, enforceable, or otherwise pertinent; it is not allowed to make regulatory decisions.

 

Further, the Court also mentioned an important aspect of the case that the lady did not appear to be coerced or under any undue influence while making any statement. It is the fundamental right of the adult to marry as per her own choice and decide to convert and not return to her parental house and in such circumstances, there can be no interference by the Court. Hence, the writ petition was dismissed by the Court.[5]

 

Research Question

1.  Why are the states imposing restrictions on conversion of religion for marriage? What are the various state laws limiting this provision?

In India, there are states which impose state restrictions on conversion of religion for marriage.

 

Specific features of the behaviours that violate this country's secular ethos are highlighted by the anti-conversion statutes. States enact anti-conversion legislation under the guise of religious liberty with the stated goal of preventing coercive conversions. The only limitations placed on the right are those outlined in Article 25 on the basis of public order, health, morality, and public peace because there is no central legislation addressing the question of conversion. Over time, it has been apparent that certain provisions of these state laws go against secularism's ideals and ignore the intrinsic worth of the individual's right to freely select their religion and embrace a different one.

 

For instance, marriage after conversion or conversion after marriage is prohibited by the religious legislation of various jurisdictions. Any marriage performed for the express aim of conversion may be ruled null and unlawful by the Family Court, according to Section 6 of the Uttarakhand Freedom of Religion Act, 2018. Similar to this, Section 5 of the Himachal Pradesh Freedom of Religion Act, 2019 declares that the Family Court will deem a person's conversion solely for the sake of marriage to be invalid.

 

The Madhya Pradesh Freedom to Religion Bill, 2020 also states an anti-conversion law that outlaws religious conversion for the purpose of marriage and declares it to be null and void. Lastly, Section 6 of the Uttar Pradesh Ordinance states that any marriage done for the sole purpose of unlawful conversion by an individual to another religion shall be declared null and void by the courts. Hence, these laws make all marriages of conversion unlawful thereby putting an end to interfaith marriages under personal laws.

 

In recent times, Uttar Pradesh imposed anti- conversion laws in the state. According to the statistics,

Eight states, including I Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand, now have freedom of religion laws in place (2018).

 

A marriage is deemed invalid if it was solemnised for the purpose of conversion if a conversion was performed only for the purpose of marriage, according to laws approved in Himachal Pradesh (2019) and Uttarakhand.

 

Additionally, similar law was also passed by the states of Rajasthan in 2006 and 2008 and Tamil Nadu in 2002. However, the legislation in Tamil Nadu was overturned in 2006 as a result of complaints from Christian minority, while in Rajasthan, the proposals were rejected by both the state governor and the president of India.

 

The Uttar Pradesh Law Commission[6] proposed passing a new law to control religious conversions in November 2019, citing an increase in cases of coerced or fake conversions. The latest Ordinance was enacted as a result, according to the state administration.

 

Research reveals certain commonalities among the different state statutes. Only Himachal Pradesh, Uttarakhand, and the United Provinces have laws prohibiting conversion through marriage, despite the fact that all states have laws against conversions through force, deception, allurement, and inducement of money.

 

Notification of Conversion: In terms of the requirement for notice of conversion, Arunachal Pradesh's law is thought to be the most permissive. Only the priest who performed the conversion is required to notify the District Magistrate or other relevant authorities following the conversion. The converted person is not required to make any such announcement.

 

Procedure for conversion

 

In all other states, both the converted person and the priest, or "religious convertor," must give notification in advance. The harshest rules apply in Uttar Pradesh, where a person wishing to undergo a conversion must notify the district administration 60 days in advance. The notice must be given by the priest one month in advance. For both, Uttarakhand has established a one-month notice period.

 

 

3. Research Question

3. How is the social perception on conversion of religion for marriage in India?

An empirical research methodology was followed in the study of social perspective towards conversion of religion for marriage in India.

 

The survey was conducted through the help of google form, the results may not be accurate as it was on online platform, but is made with least possible errors.

 

The question are consisted of several questions helpful in the study of interpretation.

 

The form was circulated to various age groups across mails and social media platforms. A total of 75 responses were received from the form.

 

The first question of the form was about

• 
  Gender

Fig No. 1

It was a close ended question along with three options- female, male and other. From the above pie-chart, we can observe that 66.7% of the responses received were from women and 33.3% of the responses were from men.

 

• Location of the person taking the survey

 

It was a close ended question along with the options of rural and urban. Out of 75 responses 73.3% belonged to urban area as interpreted from the pie- chart. 26.7% belonged to rural area basis.

 

• 
  Age group

Fig No. 2

From the above pie- chart, it is evident that only young people have taken the questionnaire as online services are still not made familiar to the elders.84% of the responses recorded the age between 19- 30 years. 10.7% recorded below the age of 18 years old and 31 -45 saw a 4% and 45 and above hardly being 2%.

 

• 
  Conversion of religion for marriage

 

Fig No. 3

From the responses given, we can observe that 42.7% of the responses doesn’t agree with the conversion of religion for marriage.  32% are for and support try conversion of religion for marriage. 25.3% have a neutral opinion about it. It may change according to the circumstances and perspective.

 

• If YES, what are the reasons for acceptance ?

 

Fig No. 4

Here 45 responses have been recorded, from the given options of 4 which is a close ended question, 40% opted for other reasons. 35.6% opted for the option of as society is evolving, we need to accept it too. 17.8% opted for believes in diverse religions and very few went for the option of curiosity of other religion.

 

• If NO, what are the reasons for objection?

 

Fig No. 5

50 responses were recorded for No, and various reasons along with the options available were given.

24 % said they object as they are forcefully being followed. 28%  don’t go for conversion as it is difficult to adjust to other cultures. 22% don’t support, due to religious belief. 14% opted for customs followed by elders.

Few of the other responses recorded for objection were , we need to protect and practice our tradition. There is no advantage in changing religion. The option of secular India . All these responses were recorded.

 

• 
  What if conversion is based on the belief of a person?

 

Fig No. 6

From the above pie chart, 61.3% would accept if it is based on the belief of a person. 20% of the responses would still not accept it, if it is based on the belief of a person.

18.7% are not very clear with their opinion.

 

• If one will accept the conversion of religion for marriage if it is done by one’s faith

 

Fig No. 7

From the above chart, we can observe that 52.7% opted for yes as an answer. 24.3% opted for a no for answer and 23% are neutral about the option offered.

 

From the above questionnare , it is clearly observed that society has a mixed perspective towards the conversion of religion for marriage. Majority of the population disagrees with the conversion of religion just for the purpose of marriage. While a few agree with it and are positive about it.

 

Thus, this was the recorded social perception towards the conversion of religion for marriage.

 

 

 

CONCLUSION

From the empirical research conducting and referring to distinguished articles, it can be concluded that conversion of religion only for the purpose of marriage is considered as unethical and a bad approach by the court and judicial decisions given by the judges. Few states imposed anti- conversion religion laws in order to reduce the conversion rates for marriage thus laying the foundation of diverse culture.

 

From the survey conducted, the social perspective on the conversion of religion for marriage has been denied . The social perspective towards it has mixed responses. But the majority do not validate the conversion of religion only for the purpose of marriage. The various reasons for the objection have been clearly stated in the research paper along with the interpretation.

 

Thus, my hypothesis stands wrong as the validity of conversion of religion for the marriage has been denied by both court and social, public opinion. Though the court in few cases has been lenient towards it, many cases in states have proven it against the basics of the nation.

 

 

BIBLIOGRAPHY

https://www.indiatoday.in/news-analysis/story/anti-conversion-laws-in-india-states-religious-conversion-1752402-2020-12-23

 

https://www.livelaw.in/pdf_upload/pdf_upload-383854.pdf

 

https://privacylibrary.ccgnlud.org/case/shafin-jahan-vs-asokan-km-and-ors

 

https://indiankanoon.org/doc/57464845/

 

https://blog.ipleaders.in/conversion-marriage-not-place-exercising-judicial-power-light-palash-sarkar-v-state-west-bengal-ors/

 

https://timesofindia.indiatimes.com/india/religious-conversion-just-for-sake-of-marriage-is-unacceptable-hc/articleshow/78961515.cms

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[1]Rev. Stanislaus v. State of Madhya Pradesh 1977 AIR  908             

 

[2] Smt. Sarla Mudgal and Others v. Union of India, (1995) 1995 AIR 1531         

 

[3] Shafin Jahan v. Ashokan KM 16 SCC 368, AIR 2018 SC 1933

 

[4] Dr. Palash Sarkar vs State Of West Bengal & Ors WP 9404 (W) 2006

[5] WP 9404 (W) 2006

 

[6] Uttar Pradesh Law Commission Report.