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THE FUNDAMENTAL RIGHT TO CHOOSE A PARTNER: HINDRANCES AND THE SPECIAL MARRIAGE ACT

By: Komal* |



INTRODUCTION


India has always been a country where love marriages have not been accepted openly and that between adults of two different castes or religions is looked upon as a grave blow to the dignity and reputation of their respective families. But over the years, the scenario has changed and the right to choose a partner has emerged as a fundamental right. An important legislation, The Special Marriage Act 1954 is also in force in the country which looks after inter-religious marriages and lays down rules and regulations for the same. Some provisions of this Act were found to be violative of the right to privacy of the interfaith couples and have been amended[I]. There is a need for us to understand these developments along with the impact they would have on us as a community. The article shall focus on the recently recognized fundamental right and the rationale behind it along with the significance of The Special Marriage Act 1954 in the country by highlighting the various problems faced by inter-religious couples.



RIGHT TO CHOOSE A PARTNER AS A FUNDAMENTAL RIGHT


The right to choose a partner as a fundamental right has been recently recognized in the case of Salamat Ansari and others v State of Uttar Pradesh[II] which was decided on 11 November 2020.


FACTS


The case was of inter-faith marriage between the adult couple Salamat Ansari and Priyanka Khanwar. A petition was filed by Salamat Ansari and Priyanka Khanwar[III] alias Alia of Kushinagar. The petitioners sought quashing of the First Information Report (FIR) lodged on August 25, 2019, at Vishnupara police station of Kushinagar by the girl’s father alleging kidnapping and forcible conversion for the sake of marriage. The petitioner’s contention was that the couple was adults and competent to marry as per their choice. Counsel for the women’s father opposed the petition on the grounds that the conversion for the sake of marriage was prohibited and such marriage had no legal sanctity. The FIR had also invoked the Protection of Children from Sexual Offences (POCSO) Act 2012.



RECOGNITION AS A FUNDAMENTAL RIGHT


The debate on whether the right to choose a partner was a fundamental right or not was put to rest by the ruling in this[IV] case pronounced by Justice Pankaj Naqvi and Justice Vivek Agarwal of the Allahabad High Court where it was specifically observed that Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty."


KEY OBSERVATIONS BY THE ALLAHABAD HIGH COURT


The court specified that the decision of an individual to choose a partner of his/her choice is strictly the right of the individual guaranteed to him as his fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution of India. The judges also extensively cited the Supreme Court’s judgment in K S Puttaswamy v Union of India[V] case on the right to privacy which said that “The autonomy of the individual is the ability to make decisions on vital matters of concern to life.” Further, the court observed that on attaining majority an individual is statutorily conferred with a right to choose a partner[VI]. This right if denied would affect his/ her human right as well in accordance with Article 16(1) of the Universal Declaration of Human Rights (UDHR) and it needs no emphasis to state that attaining the age of majority in an individual’s life has its own significance[VII]. In view of the Supreme Court’s decision in Navtej Singh Johar v Union of India[VIII], which declared section 377 of the Indian Penal Code (IPC) 1860 as unconstitutional, it was said that the law permits two adults of even same sex to live together peacefully, thereby, the case in hand should be looked upon in terms of the relationship between two adults and not between Hindu and Muslim. This right is also in consonance with Article 14 and 15 of the Constitution which prohibits discrimination on the grounds of religion, race, caste, sex and place of birth and confers equal status to every citizen, irrespective of their religion.



POSITION BEFORE THE OBSERVATIONS OF ALLAHABAD HIGH COURT


While pronouncing the judgment, the Allahabad High Court overruled its earlier rulings given in the cases of interfaith marriages where it was observed that “conversion for the purpose of marriage is unacceptable and it could not be considered as a righteous pronouncement.” The court stated that observations made in Noor Jahan v State of Uttar Pradesh[IX] and Priyanshi v State of Uttar Pradesh[X] did not lay practical and comprehensive laws as none of them dealt with the issue of life and liberty of two mature individuals in choosing a partner as to whom they would like to live with. It said that the Court must consider the wish and desire of the girls as they were above 18 years of age even if the girls are unable to authenticate their alleged conversion as they were unable to show knowledge of the basic tenets of Islam[XI]. To disregard the choice of a person would not only be antithetic but also a threat to the concept of unity in diversity.



RELIGIOUS AND SOCIETAL HINDRANCES


According to the Indian Human Development Survey from 2011-12, only 5% of Indian marriages are inter-caste and estimates from the 2005-06 survey suggest that an additional of merely 2.2% are interfaith. Moreover, in a culture where arranged marriages are the norm, only 5% of women said that they had sole control over choosing their husbands. The couples undergoing interfaith marriages or the ones who decide to be together as partners tend to face a lot of problems. Their families cut off relations with them, the couple is harassed by the members of their respective communities harass the couple and the matter can go as serious as honor killing. Realizing the gravity of the problem, the Supreme Court in the case of Lata Singh v State of UP[XII] said that this is a free and democratic country and once a person becomes a major he or she can marry whosoever he/she likes. The court, with reference to the case of Bhagwan Das v State (NCT of Delhi),[XIII] stated that honour killings come within the category of rarest of rare cases deserving death punishment, and all the persons who are planning to perpetrate honor killings should know that the gallows await them. Therefore, in a country where the ratio of inter-religious and inter-faith marriages is so low, an attempt has been made to protect the couples from the menaces surrounding them.



THE SPECIAL MARRIAGE ACT, 1954


Section 5 of the Special Marriage Act 1954, the legislation that allows solemnization of marriages irrespective of the couple’s religion, requires parties to give a 30-day public notice of their intention to marry. The couple must provide a district marriage registrar with their names, home addresses and photographs, which are then displayed in the registrar office for 30 days. Anybody who wants to file an objection can do so during this period, though the grounds for it are specific like neither partner should have a living spouse, be underage, or be incapable of consent due to unsoundness of mind.


Nevertheless, in a very recent judgment pronounced in the case of Safiya Sultana v State of UP[XIV], Justice Vivek Choudhary of Allahabad High Court ruled that the couples seeking to solemnize their marriage under the Special Marriage Act, 1954 can choose not to publish the mandatory 30-day notice of their intention to marry. Justice Choudhary took up the issue of notice under the Special Marriage Act being violative of fundamental rights when he recognized that this provision was often an impediment to inter-faith couples wanting to marry under the secular law[XV]. By citing the Puttaswamy privacy judgment[XVI], he observed that ‘personal liberty’ and ‘privacy’ are fundamental rights which include within their sphere is right to choose a partner without interference from State, family or society, and concluded that the Special Marriage Act had to be interpreted in a way that its reporting requirements would have to be read as voluntary and not mandatory[XVII].


The court, while hearing the case of Safia Sultana[XVIII] found out that the couple had wished to marry under the Special Marriage Act, but the 30-day notice compelled them to take the route of religious conversion since it was a more rapid way. The court also noted that when marriages under the personal laws do not require a notice or invitation for objections, then such a requirement is obsolete in secular law and cannot be forced on a couple. Justice Choudhary further observed that the 242nd Report of the Law Commission (2012) had specifically recommended deleting the requirement of a notice observing that it would keep a check on “high handed or unwarranted interference” which often took the form of social boycotts, harassment etc. This ruling, therefore, came as a relief to the inter-faith couples whom the vigilante groups were increasingly targeting.



ANTI CONVERSION LAWS BY THE STATE GOVERNMENTS


With the increase in the number of reported instances of women aggrieved due to their marital status, it was observed that the practice of conversion of people solely for the purpose of marriage had gained momentum. To combat this, several states have enacted the ‘Freedom of religion’ legislation, also known as ‘Anti-Conversion Laws’. The states argued that there are several conversions which are not voluntary and are totally a result of fraud, misrepresentation, inducement or allurement which ultimately gives rise to people, especially women, being cheated on and also disowned by their family resulting in their miserable lives. There have also been several cases of Hindu men converting to Islam solely to have more than one wife[XIX]. Such conversions have also posed to be a way for people to escape from the purview of The Special Marriage Act 1954. Therefore, there is a need for immediate action in this regard.


In November 2019, citing rising incidents of forced or fraudulent religious conversions, the Uttar Pradesh Law Commission recommended enacting a new law to regulate religious conversions. This led the state government to promulgate the recent ordinance on anti-conversion known as the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance 2020. However, it was opposed by several opposition leaders and former judges on the ground that it is violative of an individual’s ability to exercise his or her choice and was seen as a destruction of the freedoms guaranteed by the Constitution. Some former judges also said that it is unconstitutional as several of its provisions violate the fundamental right to practice any religion. According to Justice Shah, in the ordinance, every religious conversion is presumed to be illegal. The offence is also non-bailable and the police can arrest anyone which makes the condition even worse. Justice Madan B Lokur, a former Supreme Court judge, also had a similar view and said that while he did not support forcible or fraudulent conversions, he was against penalizing voluntary conversions.


Several petitions were filed against the ordinance in the Supreme Court and the Court has agreed to examine the constitutional validity of anti-conversion laws but refused to put a stay.


CONCLUSION


Living with someone for the entire lifetime is a big and the most important decision of everyone’s life. However, the data available reflects that very few individuals have a say in choosing their partners, and when the partner is from other religion then the issues of harassment, violence and killings come into the picture. Acknowledging these stigmas, the Right to choose a partner was granted the stature of a fundamental right by the virtue of Articles 14, 15 and 21 of the Constitution. This decision can also be seen as an attempt to promote religious harmony because there is a fair chance for couples of different religions to marry each other and exchange the beauties of their cultures. This would also inculcate a feeling of equality of all religions and humans in their off-springs who would eventually be the future of the country. Further, a balance is to be maintained between the religious and the statutory laws by rendering the issue of mandatory publication of the 30-day notice under the Special Marriage Act 1954 as voluntary because there was no such requirement in the personal laws. This provision was a driving force for the couples to convert to other religion solely for the purpose of marriage. These increasing numbers of conversions for the sake of marriage was addressed by the different states as well and they formulated Anti Conversion laws to combat these. However, the validity of such laws is still a matter of debate. The judiciary and the State Governments have both, in their own ways, worked towards ensuring that every citizen subjected to the laws gets the right to choose his partner without any interference from a third party but if someone takes advantages of the laws of the country then he shall be penalized for the same.


These judgments and decisions coming every day are a ray of hope for our country that would free us from the taboo of interfaith marriages and lead to working towards removing the religious barriers from society.


***


*The author is a student at the Central University of South Bihar, Gaya.



[I] Safiya Sultana v State of UP, Habeas Corpus No.- 16907 of 2020

[II] Salamat Ansari and 3 Others v State of UP, Crl. Mis. Writ Petition No.- 11367 of 2020, Decided on 11 Nov 2020.

[III] Ibid.

[IV] Salamat Ansari and 3 Others v State of UP, Crl. Mis. Writ Petition No.- 11367 of 2020, Decided on 11 Nov 2020.

[V] K S Puttaswamy v Union of India, (2017) 10 SCC 1

[VI] Gian Devi v Superintendent, Nari Niketan

[VII] Soni Gerry v Gerry Douglas, (2018) 2 SCC 197.

[VIII] Navtej Singh Johar v Union of India, (2018) 10 SCC 1.

[IX] Smt. Noor Jahan Begum @ Anjali Mishra and Another v State of Uttar Pradesh & Others, (W.P. [C.] No. 57068 of 2014], Decided on 16 December 2014.

[X] Priyanshi @ Km. Shamren and others v State of U P and others, (Writ C No. 14288 of 2020), decided in September 2020.

[XI] Shafin Jahan v Asokan K.M., ( 2018) 16 SCC 368

[XII] Lata Singh v State of UP, 2006 CrLJ 3312.

[XIII] Bhagwan Das v State (NCT of Delhi), (2011) 6 SCC 396.

[XIV] Safiya Sultana v State of UP, Habeas Corpus No.- 16907 of 2020, (14 Jan 2021).

[XV] Ibid.

[XVI] K S Puttaswamy v Union of India, (2017) 10 SCC 1

[XVII] Ibid.

[XVIII] Safiya Sultana v State of UP, Habeas Corpus No.- 16907 of 2020, (Decided on: 14 Jan 2021).

[XIX] Lily Thomas v Union of India, 2000 (6) SCC 224



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