Allahabad HC Order on Conversions for Marriage Omits Vital Context
In an example of why the recent order is dangerous, UP CM Yogi Adityanath quoted it to justify a ‘love jihad’ law.
(This story was first published on 01 November 2020, and is being republished from The Quint's archives to mark one year since the anti-conversion law in Uttar Pradesh came into effect.)
“The Allahabad High Court said that religious conversion isn’t necessary for marriage. The government will also work to curb ‘Love Jihad’, we’ll enact a strict law. I warn those who conceal their identity and play with the honour of our sisters and daughters, if you don’t mend your ways, your ‘Ram naam satya’ journey will begin.”Uttar Pradesh Chief Minister Yogi Adityanath on Saturday, 31 October
With this statement, Uttar Pradesh Chief Minister drew further attention to a controversial order passed by the Allahabad High Court on 23 September, which has been reported widely due to its observation that voluntary conversion of religion by an adult for the purpose of marriage, is not valid.
The order was passed on a petition filed by a couple seeking to restrain the State, and other unspecified parties, from deploying “coercive measures” to prevent them from enjoying a peaceful married life.
The couple in question, contrary to what the chief minister implied with his reference to ‘love jihad’, are a Hindu man and a woman who was formerly a Muslim, but converted to the Hindu faith about a month prior to the marriage.
Over and above this flawed reference, upon going through the order there is an even bigger question to ask: is this decision of the high court really in accordance with the law?
A Flawed Precedent?
The High Court passed a two-page order dismissing the petition, apparently on the basis that the conversion by the woman had taken place only for the purpose of marriage.
The Single Judge has relied on an earlier judgment of the Allahabad High Court itself, titled Smt. Noor Jahan Begum @ Anjali Mishra v. State of U.P. & Ors. dated 16th December 2014. There the Court was deciding the pleas of five couples seeking police protection.
In each of the couples involved in that case, the woman had converted to the man’s religion prior to the marriage and, in at least one instance, the couple was being harassed by the local police.
The couples in Smt. Noor Jahan Begum were only seeking protection from harassment – which is unrelated to the validity of a marriage per se – but the high court embarked on a wide-ranging discussion on the validity of the conversions, and the subsequent marriages, under Islam, although the matter could have been decided without it. In this context, the Court concluded that the conversions by the women in each case could not be termed “bona fide” or “valid”.
The 2014 judgment does not deal with the potential legal consequences of such a finding, except to decline to grant protection from harassment.
Such an observation, as in the more recent case at the high court, could have far-ranging consequences for the persons in question. What is to be noted, in particular, is that the women’s consent to the marriage or conversion was not doubted in any of these cases – Noor Jahan Begum or the present one.
Misapplication of Supreme Court Precedent?
The high court also relied on a judgment by the Supreme Court in Lily Thomas v. Union of India from 2000, to say that the Supreme Court had apparently observed that “conversion of religion of a non-Muslim without any real change in belief in Islam and only for marriage is void”.
However, this is a curious application of the law in Lily Thomas.
There, the issue before the Supreme Court was related specifically to conversion to Islam for the purpose of a second marriage. The Court clearly framed the issue as “where a non-Muslim male gets converted to Islam without any real change of belief and merely with a view to avoid an earlier marriage and enter into a second marriage” (emphasis added). According to the court, in such situations, the second marriage would then be void under the rules of Hindu and Islamic personal law.
The facts there were that a Hindu man, who was already married to a Hindu woman, had converted to Islam in order to marry a second woman without having to first obtain a divorce from his wife. (He nonetheless appears to have sought a divorce from the first wife and did not intend to live with two wives.)
It is important to note that the second wife in this case was also a Hindu woman. Evidently, the man’s conversion to Islam was purely an act of convenience to bypass his obligations to his first wife under Hindu law.
This is clearly not the same as a religious conversion by an unmarried person to the religion of their chosen spouse-to-be.
The Supreme Court’s consideration of whether the person converting their religion undergoes a “real change of belief” cannot be read separately from the problem of the second marriage.
The judgment specifically noted that the erring husband in that case appeared to have converted in order to “get rid of his first wife”, and “escape the clutches” of his obligations under Hindu law. The judgment does not say that conversion for the purpose of marriage is invalid in general or in any other case.
An Order Ripe for Political Misuse
The couple before the Allahabad High Court in September were not noted as having any subsisting marriages. The order is silent as to any other reasons why the couple should not be granted protection from coercive interference by the State or other persons.
It also does not record whether the couple has already faced harassment or intimidation, which is not uncommon with inter-faith marriages. There may well have been other reasons why the couple was not entitled to the relief they sought, but the Court was not required to apply the judgment in Smt. Noor Jahan Begum.
It is unfortunate that, given the known barriers to marriage under the Special Marriage Act, 1954 and the prevailing conservative attitudes towards live-in relationships in Indian society, conversion for the purpose of marriage is presumed to be suspicious or not genuine, to the detriment of adult citizens’ fundamental rights to freedom of conscience and religion (Article 25 of the Constitution) as well as their fundamental rights to privacy and liberty (Article 21).
It is also unfortunate that such observations, particularly as they have been made devoid of context, can be used by political actors interested in furthering unrelated agendas.
The UP Chief Minister’s statement, for instance, threatens violence to inter-faith couples where one member chooses to convert to the faith of the other for their own personal reasons by presuming that such an act is somehow derogatory or non-consensual. Hopefully these threats will remain dormant for the sake of the couples who remain, unfortunately, unprotected by the Allahabad High Court.
(Shruti Narayan is an advocate practicing in Delhi. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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