Interfaith marriages and constitution

Context:

The Supreme Court’s order allowing Hadiya freedom of movement was long overdue

Introduction:

• By freeing Hadiya, girl from Kerala who converted to Islam, from her parent’s custody, the Supreme Court has protected her freedom to choose her religion and her freedom of movement.
• In an open court hearing, where Hadiya gave her testimony in Malayalam, the apex court decided that the 24-year-old would be able to complete her medical internship at Sivaraj Homoeopathic Medical College in Salem.
• Hadiya, had been practicing Islam for nearly two years, and had to face judicial proceedings twice at the instance of her father, who alleged that her conversion was involuntary and part of a ploy of communal groups to radicalize her and send her abroad to join the Islamic State.

SC Court’s judgment:

• The Court has emphasized on her personal liberty rather than curtailing her freedom on a totally unrelated ground.
• The Court has now allowed Hadiya to go to his husband in Tamil Nadu and complete her internship as part of a homoeopathy course.
• The Apex court had also made it clear that the National Investigation Agency can continue its ongoing probe.
• The possibility of indoctrination cannot be a reason for undermining personal autonomy.
• It gives primacy to a woman’s freedom to choose her manner of living.
• The Supreme Court had held that a woman’s consent as an adult is the most important aspect to consider in a case.

Can an adult woman be sent into the “custody” of her father?

• The Kerala HC verdict noted the contention of the father’s counsel that “as a parent it is his right to give away his daughter in marriage and to ensure that the person who marries her is a suitable person.”

Issues related to interfaith marriage:

• Most of interfaith marriage couples are forced to conversion.
• In Muslim Personal law in order to get married to a non Muslim conversion is the only way.
• Hindu religion allows only monogamy and those who want to marry second time takes other course.
• The Maternal and paternal succession have complexion in interfaith marriages.
• There is no provision regarding caste determination of child born out such marriages.
• Special Marriage Act 1954 is not compatible with backwardness of the society.
• There is debate over the validity of Article 226 in context of annulling the interfaith marriage by high court.

The constitutional and rights issues involved in interfaith marriages:

• The rights provided by the Constitution of India such as rights of Right to Equality, Right to Freedom & Personal Liberty, Right to Life, are also conferred to the couples marrying under the Special Marriage Act.
• In India all marriages are governed by personal religion but when it comes to interfaith marriages it has to come under special marriage act 1954.
• SC has extended the ambit of Article 21 right to life to cover the aspect of marital choice
• It is an individual’s choice for obtaining freedom of choice.
• Freedom of choosing life partner also ensures Right to life with dignity.

Article 21:

• Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
• Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

Article 25:

• Article 25 of the Indian constitution provides the freedom to practice any religion of one’s choice. And personal laws of the religions have specified various laws relating to marriage for the followers of that religion. Hence, in India inter-faith marriages are allowed as the constitution allows one to convert to a different religion from what one was born with and further the personal laws of the religion have provisions.
• Right to freedom of religion is a fundamental right, article 25 of the constitution has detailed provisions in this regard.
• It provides- all persons are equally entitled to freedom of conscience and the right to profess, practice and propagate a religion of his/her wishes.

Reasonable restrictions;

The right to freedom of religion is not an absolute right but is qualified. thus it is subject to certain restrictions supposed to impose by the state, these include-

• Maintenance of public order, health and morality.
• Further state is empowered to segregate religious activities from those which are secular in nature- economic, financial and political activities.

Freedom of movement:

• Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country, and to leave the country and return to it.
• The right includes not only visiting places, but changing the place where the individual resides or work.
• A citizen of a state in which that citizen is present has the liberty to travel, reside in and/or work in any part of the state where one pleases within the limits of respect for the liberty and rights of others.
• A citizen also has the right to leave any country, including his or her own, and to return to his or her country at any time.

The right to freedom of movement is enshrined in Article 13 of the Universal Declaration of Human Rights. These rights are given below:

• Everyone lawfully within the territory of a State shall, within the territory, have the right to liberty of movement and freedom to choose his residence.
• Everyone shall be free to leave any country, including his own.
• The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
• No one shall be arbitrarily deprived of the right to his own county.

Freedom of religion:

• Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance.
• It also includes the freedom to change one’s religion or belief.
• Freedom of religion is considered by many people and most of the nations to be a fundamental human right.
• Freedom of belief is different. It allows the right to believe what a person, group, or religion wishes, but it does not necessarily allow the right to practice the religion or religion wishes, but it does not necessarily allow the right to practice the religion or belief openly and outwardly in a public manner.