India’s Special Marriage Act (‘SMA’) was enacted in 1954 to maintain India’s secular fabric and provide legal recognition to inter-faith couples' union. However, this legislation comes with stipulations such as publishing a Notice of Intended Marriage that leave couples vulnerable to harassment and exploitation by family members apart from being targeted by activist groups. A Notice of Intended Marriage has to be given publicly for a period of 30 days without which a marriage cannot be solemnised. Anyone with objections to the union can reply to this notice. Thus, to legalise their marriages, many partners in inter-faith marriages choose to convert to their partner’s religion as their desire for the union takes precedence over their faith.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (the ‘UP Ordinance’) seeks to prevent religious conversion through misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or marriage. It sets out a jail term of 1-10 years and a fine ranging from 15,000 to 50,000 Indian Rupees (150-500 British Pounds). The burden of proof is on the accused to prove that they were not responsible for religious conversion. Furthermore, this is a non-bailable offence and is being used specifically to target interfaith unions between Muslim men and Hindu women. Due to the paucity of time and resources, this paper will focus on the UP Ordinance as it is the latest work of legislation impacting the subject. Only conversions pertaining to marriage will be analysed.
Hindutva is a modern political ideology that advocates for Hindu supremacy and seeks to transform India, constitutionally a secular state, into an ethno-religious nation known as the Hindu Rashtra (Hindu nation).“Love Jihad” is a conspiracy theory put forth by proponents of Hindutva. It states that Muslim men target Hindu women by means of feigning love and seduce them into converting to Islam. The purpose of their actions is to increase Islam’s demographic base in India. Despite containing other provisions to bar religious conversions, the UP Ordinance primarily focuses on marriage, and political leaders have proclaimed that it has been explicitly enacted to stop “love jihad”. It is important to note that this term has no legal or constitutional standing.
Understanding the Special Marriage Act (1954) and the Prohibition of Unlawful Conversion of Religion Ordnance (2020)
Historically, “love jihad” was never a movement because the possibility of interfaith marriage, in particular Hindu-Muslim marriage, was so limited. India is infamous for marital endogamy, especially caste endogamy, which maintains social control in an otherwise pluralistic society. Interfaith marriages, though allowed by the law, were not commonplace. Much of this had to do with society and parental emphasis on marrying not just within the same religion but the same caste. Mid-20th century laws reflect the role of familial control over marriage. The Special Marriage Act, 1954, allows individuals of different faiths to marry, but only after a month’s notice period. The couple’s details, address, intentions, etc., are widely publicized. This law’s stipulations provide the opportunity for parents to intervene in marriages deemed unsuitable. These procedural hurdles sometimes drove interfaith couples to convert their religion and elope.
The purpose of the SMA was to provide legal recognition to India's inter-faith unions. It does not take into account the religion of both parties registering their marriage. It considers marriage a civil contract and has no ceremonial requirements. It has minimum age and sanity requirements for both parties. It requires solemnisation at a marriage office after the 30 days of the couple’s notification that expresses their intention of marriage.
The UP Ordinance allows an affected party or a relative to file a complaint. It requires that a person who “desires of conversion” must inform a district magistrate two months before conversion and provide personal information within 60 days. This should be accompanied by a notice issued by a priest. The state’s interference does not stop here; after these steps, the police will conduct an inquiry to ensure that the individual is converting willingly. This is patently unconstitutional and violates the right to religion and other rights stemming from the right to life. Contradicting itself, §3 also lays down that “reconversion” to a person’s previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation, and so on. The law fails to consider that several IPC provisions such as wrongful confinement, intimidation, kidnapping, and assault can be used to prohibit forcible conversion. Even if marriage is registered on false representations or suppresses material facts, there are options under the law to take action.
Challenges Posed by the Special Marriage Act of 1954
The SMA requires couples to provide a 30-day notice, a copy of which is to be displayed in “some conspicuous place” in the marriage officer's office, which leaves them utterly vulnerable to harassment and exploitation by family members as well as being targeted by other activist groups. Printing personal details of the couple on marriage documents, including public notices with names, addresses, and phone numbers in the public domain to invite objections, became a red flag for irate family or, of late, even right-wing vigilante activists. Due to these fallacies in the legal framework, individuals opt for religious conversion as a convenient and safer way to cohabit in a union.
Personal laws apply to specific groups of people based on their religion. Marriage laws under Hinduism, Islam, Sikhism, Zoarastrianism and Christianity do not have any pre-conditions of a mandatory notice. This cannot be reconciled with the guarantee of equality under Article 14 of the Indian Constitution, which prohibits the state from denying any person equality before the law or the equal protection of laws. The application of different procedures depending upon the faith/caste of the individual does not exhibit any intelligible differentia. It fails to satisfy the reasonable classification test and the standard of arbitrariness as envisaged by Article 14. It further violates Article 15 of India's Constitution, which specifically prohibits any discrimination by the state solely on the grounds of religion, race, caste, sex, place of birth, or any of them.
Registering civil marriages under the SMA also requires the couple to undertake that no First Information Report (FIR) has been lodged against them. In such cases, the woman’s family often files complaints alleging kidnapping along with the anticipations of rape and sexual assault against their female relatives. Apart from these reasons, inter-faith couples pursue conversion over the Special Marriage Act, specifically in cases where one of the parties is a Non-Muslim. The children born in such wedlock would otherwise be excluded from inheritance under Muslim law.
The effect of law should be emphasized over its object and form. Such gaps in the state machinery violate the right of every citizen to choose a life partner and severely demolish the autonomy, privacy, human dignity, and personal liberty guaranteed under Article 21 of the Constitution, thus denting the degree of Freedom of Marriage in the country.
The Allahabad High Court recently tried to do away with the 30-day notification requirement of the SMA in a landmark judgment. The Bench referenced Lok Sabha debates at the time of its enactment reveal that the Act embedded secularism in the institution of marriage as a ‘freedom’ to love for many parliamentarians. They emphasized the right to freedom of marriage “without interference from both state and non-state actors” while ruling against the mandatory publication of the notice. However, the Supreme Court overruled the Allahabad High Court judgement and upheld the requirement of the 30-day provision.
III. Upholding Constitutional Rights and the Autonomy and Agency of Women
Marriage is a part of an individual’s “personhood and identity.” The Supreme Court stated that a life partner's choice, whether by marriage or outside it, was part of an individual’s “personhood and identity.”
“Matters of dress and food, of ideas and ideologies, love and partnership are within the central aspects of identity. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters”.
Autonomy of the individual is defined by the Court as the “ability to make decisions in vital matters of concern to life.”
The UP Ordinance allows any relative of a Hindu woman to challenge her marriage's legitimacy. In this case, the reverse burden of proof would apply. The person who facilitated the conversion would need to prove that it was not forced while disregarding the woman’s testimony of having consented to the transformation and marriage. This is a direct violation of Hindu women’s right to choose their life partners. Such a practice instutionalises patriarchal attitudes; in such an instance, a woman is perceived as property, handed over from her parents to her husband, with little say in the matter. As seen in the case of Shefin Jahan v. Asokan KM (‘Hadiya case’), the woman’s assertions of having converted and married her husband by choice were of little value. She was initially “returned to the custody of” her parents, and only reunited with her husband after a long battle to convince the courts of her autonomy. This reverse burden of proof completely disregards a woman’s consent and agency.
These fundamental rights must not be questioned or curtailed. A woman’s agency is her own, and no parent, relative, or state apparatus should be given the authority to coerce her. The attempt to rob women of their agency is an attempt to produce a docile female population that does as it is told and does not rebel against societal and familial directives. However, there are reports of discrimination based on caste, class, and religion apart from several marriages leading to honour killings.
Thus, the UP anti-conversion Act is also violative of the Supreme Court’s decision in the Hadiya Case where it was stated that the state must not interfere in the private lives of citizens, especially choosing a person to marry and that the state must be committed to promoting and protecting the plurality and diversity of India’s culture, including where it manifests in intimate personal choices and decisions.
Reforming the Regulatory Framework of the Special Marriage Act of 1954
As gender roles in a marriage evolve along with stereotypical notions of gender identity, the SMA represents an understanding of marriage that is outdated. Egalitarian concepts such as irretrievable breakdown of marriage and community of marital property need to be included in the SMA. Various procedural mechanisms such as the requirement to issue a public notice often result in moral policing, especially in inter-faith and inter-caste unions. This provision was enacted to prevent elopements and violates the right to privacy, and takes away the autonomy of those seeking to enter a marital union.
A new SMA should include protective provisions for the vulnerable parties. It is often seen in India that inter-faith and inter-caste marriages in India come with onerous hardships that have social exclusion and a danger to the life of the couple. A new law is necessary since the interconnectedness of the substantive and procedural provisions of the SMA makes selective amendments unfeasible. These provisions should also include post-separation support measures for vulnerable spouses. The new SMA should be a simple, safe, and fool-proof law that allows interfaith couples to marry without conversion. Provisions of the new SMA need to factor in recent constitutional law developments such as the Right to Privacy being declared a fundamental right under Article 21.
In 2018, a three-judge Supreme Court bench headed by then Chief Justice Deepak Misra passed extraordinary guidelines to protect couples from “honour killings” related to inter-caste and interfaith unions. The guidelines directed all the states to set up special cells across the country to attend to calls from couples in distress, establish safe houses in each district, outlined remedial measures to ensure security to the couple and family apart from ensuring effective investigation. However, contrary to expectations, these guidelines remained on paper, never got implemented, or, if implemented, then in a completely lopsided and arbitrary manner. Such measures need to be implemented to ensure that these couples can enjoy their constitutionally guaranteed right to marriage.
Conclusion:
The enactment of the Special Marriage Act is itself a story of India’s fears of exogamy, its discomfort with religious conversions and remains one of the many mechanisms for surveillance. Never having had any consensus on a universal code, the Special Marriage Act's enactment in 1954 remains the closest law that can somewhat claim religious-neutrality. The UP anti-conversion Act recants the free will of women while undermining their autonomy and civil liberties. Adult women are infantilised, placed under parental and community control, and denied the right to take life decisions, should those decisions not be agreeable to their guardians. Historically, marriage has been a tool to control women’s sexualities, promulgate caste lineage and stop women from exercising their autonomy.
Thus, the UP anti-conversion Act does not further the purpose of the SMA and further complicates an already tedious process. This communal propaganda does nothing to safeguard women’s rights; rather, it further curtails their mobility, social interactions, and freedom of choice. Cultural policing sets the stage for the state’s assertion of control over consenting couples belonging to different religions. Given the history of misuse of criminal law in marriages that transgress socio-cultural norms and the complicity of the patriarchal state machinery in aiding this process in the decade prior to the UP anti-conversion Act, it is yet another potent weapon that seeks to trample upon women’s agency along with the SMA.
Image via Wikimedia Commons.