LOVE JIHAD: A legal commentary

INTRODUCTION

“Jihad” in Islam principally means battle on the ground of religious cause, and “Love Jihad” means converting the religion of women into their husbands after marriage without consent. The term love jihad emerged in 2009 when an ailment was raised about the forceful conversion of Hindu girls into the Muslim religion under pressure by boys on the ground of fake love and promises in Kerala and Mangalore.

The forceful conversion was in news since 2009 but the 2020 case came into highlight when a college girl was shot outside her college premises by her classmate. People alleged it to be a matter of one-sided love, but family members alleged it to be a matter of Love Jihad.

Forced conversion under the influence of false promises and coercion is not only punishable under the existing law but also declared to be a cognizable and non-bailable offense under “Uttar Pradesh Prohibition of unlawful Conversion of Religion Ordinance 2020”. In the gaze of some politicians and activists, the law is a violation of citizens' constitutional and fundamental rights hence requires to be revoked.

LEGAL RESTRICTIONS AGAINST CONVERSION

Related laws were enacted in many States over the years to restrict the forceful conversion. These states include Odisha, Madhya Pradesh, Arunachal Pradesh, Chattisgarh, Gujrat, Himachal Pradesh, Jharkhand, Uttrakhand.

However, the laws of Himachal Pradesh and Uttrakhand also declared marriages to be null and void if the sole objective of the marriage was conversion. Tamil Nadu proposed the anti-conversion law, “Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002” which stated that no person can convert or attempt to convert another person fraudulently or forcefully. However, the law was repealed by the Tamil Nadu government after the defeat of the ruling party in 2004.

A similar law was enacted in 2006 by the ruling government in Rajasthan but authorization of the President is still pending.

SECTION 366 OF IPC

Section 366 follows Kidnapping, abducting, or Inducing women to compel their marriage, etc. Whoever kidnaps or abduct any woman against her will or with the intention that she may be compelled to marry any other person without her consent will be liable for imprisonment up to 10 years and a fine.

SPECIAL MARRIAGE ACT, 1954

The following Act deals with the legal registration of marriage between two people of different religions, it also deals with inter-caste and inter-religion marriages. The act applies to all states except Jammu and Kashmir and falls not only for Indians but also for Indian citizens residing abroad. During the registration of marriage, no rituals and customs are followed on the part of both parties. The most necessary element for the marriage to be fulfilled is the “consent” of both the parties

Under section 5 of the Special Marriage Act, parties must submit notice to the “District Magistrate” stating their intention to marry 30 days before the marriage, after which the marriage gets solemnized, three witnesses are required essentially during the procedure. However, recently Allahabad high court ruled that couples seeking to solemnize their marriage under the special marriage act, can choose not to publish the mandatory 30-day notice of their intention to marry, as it was violating the fundamental Right of Liberty and Privacy.

THE UTTAR PRADESH PROHIBITION OF UNAWFUL CONVERSION OF RELIGIOUS ORDINANCE, 2020

The ordinance came into consequences after the right-wing Hindu activists' conspiracy theory that Hindu women are fraudulently and forcibly converted into another religion by Muslims on the ground of marriage. The law says that any person converting or attempting to convert another person based on fraud, force, undue influence, misrepresentation, coercion, or allurement will be a vigorous offense. However, someone willing to convert back to his/her religion will not be registered under this ordinance.

If marriage is done only for the sole purpose of conversion by a man of one religion to a woman of another religion, it shall be declared void by a family court. One who wilfully desires to covert his/her religion will have to give a declaration at least 60 days before the marriage to the District Magistrate, after receiving the notice the Magistrate gets an inquiry conducted by police to know the real intention of the conversion. Furthermore, the burden of proof lies upon the person who was responsible for the conversion to prove that religious conversion was not performed through misrepresentation, allurement, fraud, force, undue influence, or by marriage.

PUNISHMENTS

If the accused is guilty of conversion done through misrepresentation, force, undue influence, coercion, allurement, and fraud then a jail term of 1-5 years and fine up to rupees 15000 will be awarded

If the conversion is done of a minor girl belonging to the SC and ST community then the jail term would be 3-10 years with a fine up to rupees 25000.

If the conversion is done on a mass level then the jail term would be 3-10 years with a fine of up to rupees 50,000.

ISSUES ARISING AGAINST THE LAW

The law faced plentiful criticism by the opposition political parties, Rajasthan Chief Minister addressed the law as unconstitutional in itself in the view of the fact that marriage is a matter of personal liberty and personal choice, no state, law, jurisdiction can interfere with someone's freedom. Many politicians and activists claimed that the term “Jihad” is termed by the ruling party and the party is planning laws against inter-faith marriages.

One of the ruling party MLA mentioned that marriage is surely a matter of personal liberty but it is not justified to convert a woman's religion fraudulently and forcefully on the ground of marriage. Furthermore, other ruling leaders viewed that conversion is done forcefully so that Hindutva can be converted into a minority in terms of population, though no evidence is found yet about the conspiracy.

Allahabad High Court ruled that every person has the right to choose a partner and marry because it is his/her right to life and personal liberty under Article 21A, and freedom of choice especially being an adult, which is been violated in this law. In the Salamat Ansari case, the court ruled that it must be taken into consideration that the two individuals are freely consenting adults, and if they are then their co-existence is protected by law.

CONCLUSION

Love does not arise according to religion, one needs to understand that if two adults reasonably and with their consent approve to live and marry each other, no law should become a barrier between them. Law should be enforced to curb much more serious crimes such as rape and murders arising under the influence of affection, not to stop inter-religious marriages which constitutes debate about violation of citizens' fundamental rights. There is a menace to both the individuals from each other's families because the law such as those discussed above gives them the courage to register cases against the couple with the exclusive reason of forceful conversion.