India: In light of Hadiya case, freedom to marry who you want must be a fundamental right | Tahir Mahmood

The Indian Express

The Liberty To Love
In light of Hadiya case, freedom to marry who you want must be a fundamental right

Written by Tahir Mahmood | Published:October 31, 2017

The Quit India Movement of 1942 coincided with a celebrated interfaith marriage — Jawaharlal Nehru’s daughter Indira Priyadarshini married Feroz Jehangir Ghandy of the Zoroastrian faith (later re-spelt as Gandhi). Six years later, Mohammad Hidayatullah, would-be Chief Justice and Vice President of India, wedded a Jain, Pushpa Shah. No section of society raised the bogey of what is now called “love jihad” — a hybrid English-Arabic expression referring to the phenomenon of girls born in Hindu families marrying Muslim boys. This so-called love jihad is now being countered by sort of a dharmyudh — holy war on Muslim men daring to opt for Hindu life-partners.

Hindu men marrying Muslim women are, of course, outside the scope of this holy war; and so are those who embrace Islam in search of a new wife. In 1955, the Hindu Marriage Act imposed monogamy on Hindus, extending to them the anti-bigamy provisions of Indian Penal Code 95 years after its enactment. Married Hindu men struck by Cupid’s arrow and wanting to marry their new-found love — given to understand, erroneously, that the Muslim religion furnishes an unconditional license for bigamy — began fulfilling their wish by surreptitiously faking conversion to Islam. Taking a serious view of the abominable practice, the apex court banned it (Sarla Mudgal, 1995), but it refuses to die out. Nobody has ever objected to this variety of love jihad.

I had first heard of the expression love jihad in the late 1990s when, as the chair of the National Minorities Commission, I had to take cognisance of a communal disturbance resulting from some interfaith marriages in Gujarat. For a decade since 2004 the issue of love jihad remained subdued but has now returned with a bang. The judiciary got involved in some recent cases of mixed marriages in Kerala. Those of two born-Hindu women, Akhila and Shruthi, to Muslim men provoked their parents to file habeas corpus petitions in the high court. The first of these cases, in which the girl had converted to Islam and was rechristened as Hadiya two years before the marriage, reached the country’s apex court.

Neither the Constitution nor any central or state law places any restraint on interfaith marriages. The Special Marriage Act, 1954, enables persons professing different faiths to become life-partners retaining their respective religious beliefs and practices, and yet one of them is often persuaded — or otherwise left with no choice — to embrace the other party’s religion. A greater problem, however, is that interfaith marriages without conversion are also not tolerated in the society and are often met with not only parental harassment but even communal violence. The SC had observed, “this is a free and democratic country and once a person becomes a major he or she can marry whosoever he or she likes” and had even “directed” that state protection be provided to parties to interfaith marriages throughout the country (Lata Singh v State of UP, 2004). Its direction remained unheeded.

In the Hadiya case, the Kerala High Court exceeded its brief by annulling a major and sane girl’s marriage and consigning her to parents’ jail-like custody. Hearing her husband’s appeal a SC bench headed by the outgoing CJI, seemingly carried away by the alleged “national security concerns” raised in the matter, directed an NIA inquiry. Encouraged by this, another Hindu parent of Kerala approached the court seeking the same relief in her daughter’s similar matter. The Hadiya case, however, later took a curious turn. A new bench hearing it seems to be taking a different view. “The question is can a High Court in exercise of Article 226 annul a marriage” observed the new bench. At yesterday’s much-awaited hearing, the bench gave a further sign of its thinking by directing that the girl be produced before it, observing that her stand in the matter would be “prime” and refusing to hear her in-camera.

Curiously, deciding another case of interfaith marriage last week, a different bench of Kerala High Court condemned raising the bogey of love jihad in all cases of inter-religious weddings even if resulting from “platonic love.”

Conversion for the sake of marriage only is repugnant to Islamic teachings. I would even recommend outlawing this practice. However, I fully agree with the apex court’s afore-mentioned Lata Singh verdict that interfaith marriages (without conversion) should be encouraged. The fundamental right to life and personal liberty under Article 21 has been appreciably extended by the Supreme Court to many aspects of life. It is high time the court ruled that it also incorporates an unconditional freedom of marital choice for all adults. This will promote constitutional justice and also, now, much-needed national integration.
The writer is former chair of the National Minorities Commission and member, Law Commission of India