Issue of “love jihad”: Right of “free consent” for Marriage

Context: Many state governments have announced that they are considering enacting an appropriate law to stop marriages which they term as “love jihad”.

What are the recent cases?

• A Muslim girl by birth converted to the Hindu religion and just after a month, she married a Hindu man according to Hindu rites and rituals.
• The Allahabad court directed the girl to appear before a magistrate to record her statements.
• The purpose was to check whether the girl converted with her consent or not.
• In another matter, a Hindu girl by birth converted to Islam and married a Muslim. The High Court recorded her statement and after its subjective satisfaction that she, being a major, had acted of her own volition.

What was the basis of observations?

• Lily Thomas (2000) and Sarla Mudgal (1995): In both the cases, the issue was of Hindu married men committing bigamy to avail a second marriage, without dissolving the first just by converting from Hinduism to Islam.
• Section 494 and second marriage: Both judgments concluded that the second marriage of a Hindu husband, after his conversion to Islam, would not be valid in view of Section 494 of the Indian Penal Code. The Court clarified that a marriage solemnised as a Hindu marriage cannot be terminated by one spouse converting to another religion.

What are the arguments against such laws?

• No legal basis: The concept of “love jihad” has no legal or constitutional basis, it has been concocted for the last few years.
• Fundamental right: The right to marry a person of one’s choice is a guarantee under Article 21. At the same time, freedom of conscience, the practice and propagation of a religion of one’s choice, including not following any religion, are guaranteed under Article 25.
• Avoid mixing of issues: Polygamy, polyandry, kidnapping, coercion, etc. are separate issues covered under existing provisions of the IPC.
• Fundamental freedoms: The right to marry a person of one’s choice flows from the freedom of individuality, naturally available to any individual.
• Supreme court views: The view of the Supreme Court (1965) that a marriage is not approved unless the essential ceremonies required for its solemnisation are proved to have been performed can only be read if one partner denies the marriage.
• Marriage is the very foundation of civilised society: the observation that “marriage is the very foundation of civilised society” and without which no civilised society can exist have become obsolete given the recent judgments by larger benches of the Supreme Court.
• Sub-judice: The legality of legislation like the Citizenship Amendment Act, which excludes only one religion from its purview, criminalisation of pronouncements of triple talaq and taking away the special status of Jammu & Kashmir are pending consideration in the Supreme Court.

The Courts needs to examine if the individual concerned has exercised their right of “free consent”.

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