Love jihad and the law: How can marriage be solely for the purpose of conversion?
BJP CMs have declared their intention to enact laws against this practice but the fear of physical harm has failed to deter young women from marrying out of choice
Editor's note: This article was originally published on 8 November. It is being republished in light of the Madhya Pradesh home minister Narottam Mishra's announcement on Tuesday that a 'love jihad bill' is set to be tabled in the state Assembly and its provisions include five years of rigorous imprisonment for violators.
As an increasing number of young Hindu women break free from family norms and choose to marry Muslim men, Hindutva supporters, who view such marriages as "love jihad", are scrambling to find means to stop them. Since such marriages are valid, stopping them has been possible only through physical intervention by groups such as the Bajrang Dal and various Hindu Senas. Obviously, such intervention has its limitations.
But Hindutva leaders have just discovered a more effective way: preventing such marriages by enacting a law.Significantly enough, in this endeavor, they are being encouraged by the judiciary.
Thus, the first chief minister to declare that he would enact a law to stop 'love jihad', Yogi Adityanath, cited the 23 September judgment of the Allahabad High Court which held that conversions only for the sake of marriage are not valid. Ironically, the case involved a Muslim woman who had converted to Hinduism to marry a Hindu. She urged the court to protect her from her parents; the legality of her conversionwas not the issue before the court.
The Allahabad High Court was only relying on similar observations made by the same court in 2014, where too, the plea had only been for protection from parents.
While these observations by the Allahabad High Court have helped those who want to stop Hindus converting for marriage, other high courts have gone even further by actually suggesting that laws be enacted to deal with such conversions.
The first to do so was the Uttarakhand High Court, in November 2017. Here, too, the case involved a Muslim man converting to Hinduism to marry a Hindu girl. The girl’s father claimed the conversion was fake, and the man continued to be a practising Muslim. But before the legitimacy of the conversion could be verified, the girl told the court that even though she had voluntarily married, she was choosing to return to her father.
Disposing of the petition, Justice Rajiv Sharma called such conversions a 'sham'’ and suggested that the Uttarakhand government enact a law against them.
Within six months, the BJP government headed by chief minister Trivendra Singh Rawat, who was a prominent RSS member, enacted the Uttarakhand Freedom of Religion Act, 2018. It became the first anti-conversion law which lists 'marriage' alongside other fraudulent means of conversion. The Statement of Objects and Reasons of the Act speaks of those with an "agenda" to increase the strength of their own religion; of men who misrepresent their faith, or convert only to marry so that they can then convert their wives to their own religion.
However, the provisions of the Uttarakhand Act do not prevent conversions solely for the purpose of marriage. Instead, they do the reverse. They aim to prevent marriages undertaken "solely for the purpose of conversion" by declaring them null and void.
How can a marriage be proven to have been undertaken solely for the purpose of conversion? Probably with the help of Section 8 of the Act, that necessitates a month’s notice to be given to the District Magistrate before any conversion can take place, both by the person intending to convert and thepriest who would carry out the conversion. The District Magistrate is obliged to make inquiries through the police about the "real intention, purpose and cause" of the proposed conversion.
A month after the Uttarakhand High Court’s suggestion, the Rajasthan High Court went a step ahead. In December 2017, it laid down guidelines that would have the effect of law till the state enacted a law to deal with the problem of "forcible conversions". The State does have an anti-conversion Bill enacted by chief minister Vasundhara Raje, but it has not received the President’s assent.
Ironically enough, the court gave these guidelines after having upheld the validity of a marriage between a Jain girl with a Muslim, and after having given them police protection against her family. In response to a habeas corpus petition filed by her brother, the girl told the court she had acted of her own free will.
Despite the outcome of the case before it, the judges took serious note of the argument that an increasing number ofteenagers were 'being made to convert' only for the sake of marriage. Noting that in certain religions, both spouses had to be of the same religion, the court felt that the Constitutional right to freedom of religion needed to be protected.
The court’s guidelines stipulated that advance notice be given of every conversion to the district magistrate who would display the notice on the day of receipt. Any marriage involving conversion, said the Court, could only take place at least a week after the conversion.
What made the Allahabad, Uttarakhand and Rajasthan high courts make observations and issue guidelines on conversions undertaken only for the sake of marriage, even when those observations were either not relevant to the cases they were hearing, or when it was obvious that in those cases, the conversions had been voluntary?
One obvious reason was the precedent set by the Supreme Court in 2017, when it asked the NIA to probe allegations of conspiracy in the conversion of Hadiya. Born a Hindu, Hadiya’s conversion to Islam and subsequent marriage to a Muslim were challenged by her father in the Kerala High Court which annulled her marriage. The Supreme Court finally set aside the annulment in 2018, but asked the NIA to continue probing her conversion.
The Statement of Objects and Reasons of the Uttarakhand Act cites the Supreme Court’s action in the Hadiya case.
Another reason could be the hysteria generated by the anti-``love jihad’’ campaign ever since the BJP government took power at the Centre in 2014. The success of the campaign,waged both on the ground and through social media, in the three states mentioned above, can be gauged by the following:
• In September this year, an eight-member SIT was formed in Kanpur at the behest of the VHP to probe the growing number of Hindu girls marrying Muslim boys. 'Love jihad’ became a political issue in Uttar Pradesh right after the 2013 Muzaffarnagar riots, with BJP blaming Samajwadi Party chief and the then chief minister Akhilesh Yadav for being supportive of "love jihadis".
In his prime ministerial campaign in 2014, Narendra Modi had spoken in Baghpat of the threat to the safety of our "bahu betis". Last year, the UP Law Commission submitted a draft anti-conversion law to the chief minister which made conversions done solely for the purposes of marriage null and void.
• In December 2017, a jobless Shambhulal Regar hacked and burnt alive a Bengali labourer Mohammed Afrazulin Rajsamand district of Rajasthan, justifying his act in the name of stopping 'love jihad'.
• In two separate incidents in Uttarakhand in May and August 2018, police rescued Muslim youth found with Hindu girls from lynch mobs. The judiciary , however, was not always so troubled by the phenomenon of conversions. In 2012, the Himachal High Court struck down two provisions of the 2006 Himachal anti-conversion law, as ultra vires of the Constitution. These sections provided for a month’s advance notice to the District Magistrate by the convertee, but no such notice if the convertee wanted to return to his original religion. The first clause violated the fundamental right to privacy, said Justices Deepak Gupta and Rajiv Sharma, and also put the convertee’slife in danger. The second clause violated the right to equality.
Despite this, in 2017 and 2018, the Rajasthan and Uttarakhand high courts stipulated that advance notice be given. And last year, the BJP government of Himachal Pradesh amended the state’s existing law to include marriage as a means of fraudulent conversion. The VHP has been carrying on a campaign against love jihad in Himachal Pradesh since 2015, specially targeting the custom of "Ganga Vivah", where youth can choose their own partners in an annual fair.Incidentally, the 2006 act had been passed by the then Congress government.
After Yogi Adityanath, all BJP chief ministers have declared their intention to enact laws against "love jihad". However, when the fear of physical harm has failed to deter young women from marrying out of choice, it seems unlikely that the fear of laws will do so.
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