AUTHORED BY:           

NAMRATA MOHAPATRA

AMITY LAW SCHOOL, NOIDA

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RIGHT TO INTER-FAITH MARRIAGE IN CONTEMPORARY INDIA

 

CHAPTER 1: Right to Marry in India

1.1 Background of Inter faith, Inter caste marriages in India

India is a country which prides itself on its varied culture, rich heritage and religious harmony, a country which, by the means of its supreme constitution believes in the supremacy of secularism, a country where 7 billion citizens identify to nine recognized religions.

In writing, the varied culture, rich heritage and religious harmony sound almost utopian. While the reality is far from this utopian picturesque scene students are taught in their schools growing up. Almost every school textbook from class 4, moral studies or social studies book has a picture of people from different religions standing under one flag, to show unity in diversity. Students are taught to love one another, even if they belong to different religions and must respect one another’s faiths and beliefs. Majority of families also teach their kids to respect other religions.

However, this picturesque image of unity in diversity is shattered when an individual chooses to marry outside his or her religion or cast.

“The choice of an individual is inextricable part of dignity which cannot be interfered in the fructification of said choice. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. Such infringement and obstruction is, unequivocally, constitutional violation. Extra-constitutional perceptions of the community has to be melted into oblivion paving for smooth path of liberty.” [1]

When two consenting individuals who are adults belonging to different religions decide to get married, lawfully, it is known as an inter-religious marriages. However, under the Hindu Marriage Act, Sikhs, Buddhists and Jains are also included. These mixed religious marriages are registered under the Special Marriage Act, 1954. This enables individuals coming from different religious backgrounds to get married without any hassle under the different marriage laws. However, in 2018, inter-faith or inter-religious marriages still continue to be considered a taboo in India.

Along with the Act which legally allows individuals from different religions to get married, also comes the opposition of families of the individuals. The amount of violence which has been recorded is extremely high, and continues to intensify, especially in certain religions. The growing resentment of people against inter-religious marriages is only increasing.

1.2 Meaning and Scope of Marriage in India

The meaning of marriage in India is dependent on the religion one belongs to. While for some, it’s a holy matrimony, for others, it is a contract which gives exclusive rights to the husband to own the wife.

The meaning of marriage thus depends on the religion that one refers to. According to statues such a Protection of Women from Domestic Violence Act, 2005[2], even live in relationships may be treated as marriages. Maintenance is specifically addressed under the personal laws of each statute, section 125 of the Code of Criminal Procedure, 1973, it also gives the right to women would cannot maintain themselves after marriage.

The nature of marriage can also be seen in the judgements of the following case laws:

1. Badri Prasad vs. Dy. Director of Consolidation, 1978

“This was the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption arises in favour of wedlock where the partners have lived together for a long term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy.”[3]

1. Indra Sarma vs. V.K.V.Sarma,2013

The recent judgment of the Supreme Court has illustrated five categories where the concept of live in relationships can be considered and proved in the court of law.

“Following are the categories:

1. Domestic relationship between an adult male and an adult female, both unmarried. It is the most uncomplicated sort of relationship
2. Domestic relationship between a married man and an adult unmarried woman, entered knowingly.
3. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. Such relationship can lead to a conviction under Indian Penal Code for the crime of adultery
4. Domestic relationship between an unmarried adult female and a married male, entered unknowingly
5. Domestic relationship between same sex partners ( gay or lesbian)”[4]

“The Court stated that a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the Protection of women Against Domestic Violence Act, 2005 and provided certain guidelines to get an insight of such relationships. Also, there should be a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account, including the individual factors.”

While the above constitute as relationships which are in the nature of marriage, so are ones belonging to different religions, under the Special Marriage Act. In a recent judgement, the Chief Justice of India, Dipak Mishra said that no one, either individually or collectively has the right to interfere in a marriage where there are two consenting adults involved. Activist Madhu Kishwar also spoke up in court to say that around 3% of the honor crimes are related to sagotra marriages, which means marriages within the same gotra, while 97% of honor killings are triggered by religion, caste and other similar issues. The Supreme Court made it clear that they are against the increase rate of honor killing which takes place in India due to inter religious and inter caste marriages, and there need to be severe punitive measures to be taken in order to curb this.

1.3 Uniform Civil Code

Under the many different religions that are surviving here, it is impossible to get a Uniform Civil Code, under which marriage would be governed by the UCC. Many would debate to the other extreme as to why a Uniform Civil Code is necessary. The main idea of the UCC is to replace all the personal laws which are based on customs, traditions and religion with a common set of rules governing all the citizens of India.

If the UCC were to govern marriages in India, it would mean that there would be a loss of personal religious rights that a citizen is allowed to have under Article 26[5] of the Indian Constitution. Thus, it is very necessary to weigh all the pros and cons of implementing the UCC in India. The UCC will give rise to the following:

1. Practicality: While it sounds very pleasant on paper, the practicality of implementation will be harder than it seems. In a population where there is a Hindu majority, and several number of minority religions, which most certainly contradict each other, then how can a State encroach into someone’s religion freedom. For example: this would mean that people would have to follow similar practices of marriage and conform to the laws which would be brought out by the State. The practicality would make sense in a country where the diversity might not have been too much, with smaller countries where the population more or less belongs to the same religion, it is easier to implement.
2. Encroachment of religious freedom: Once the State implements laws, it will be very hard to satisfy every religious view. While some might be okay with the law, there might be other religions for which the State law might be in contravention with. The executive body would have to make a law which addresses all the religions, and keeping in mind that each religion is different from the other. This also means that the State would force the citizens to disregard their own personal laws, which could be ultra vires, as the statue might be overpowering the basic essence of the fundamental rights mentioned in the Indian Constitution.

3. Interference of the State: The State is already on its way to taking away rights in its false façade of implementing the Aadhar Act. While there are many civil societies against it, there is a majority number rooting for the implementation. But what would it mean? It would mean that self would belong to the government and each citizen would be a possession of the government. We are stepping on slippery grounds when we begin to let the State take full ownership of our personal beliefs. Thus, marriage in India should be only governed by respective religions, rather than by the state.

1.4 History of Inter-religious marriages in India

The most amount of violence in these marriages are usually involving a Hindu and a Muslim individual, which is not peculiar as Hindus contribute to __ % of the population, while Muslims are the second largest religion. The tussle between Hindus and Muslims in India has been going on for a while now. Ever since the Mughals came into India and started spreading their religion, there has been a tiff between the two.

In Indian History, when there were no statutory acts which validated inter- religious marriages in India,  opposing the opinions of many, Mughal king, Akbar formed marriage alliance with Jodha Bai, who was the daughter of ruling Kings in Rajasthan. A Muslim King by marrying a Rajput princess created a sense of secularity and peace between the two religions.

The contemporary bardic literature of Rajasthan also assigns Akbar with high sounding titles such as ‘sri ji, sah, nath, aspati, chattrapati’ while assigns titles such as ‘chakars, hukmi chakar’ to the Rajput Chiefs. Akbar had planned policies towards the Rajputs, and one of them included creating marriage alliances, and these marriages were seen as normal alliances of marriage in literature.

Bharmal, the Kachhwah Rajput Chief, was the first Rajput who gave his daughters hand in marriage to Akbar, after which the ruler of Jodhpur, gave three of his daughter in marriage to Muslim rulers. In literature, the reverence and sensitivity of Akbar is written off and his willingness to marry is portrayed in literature. He, supposedly, travelled to Nagaur to marry two nieces of Rao Kalyanmal of Bikaner. It is not easy to trace back to literature to ascertain what kind of rituals must have been followed for these inter-religious marriages. However, inference can be obtained on the basis of the terms used to describe them. For example, instead of terms like nikah, which denotes a Muslim ritual of marriage, there are terms such as parnai or vyah, which indirectly imply that Akbar must have taken part in Hindu rituals. Akbar being one of the most revered Mughal rulers set an example of secularism and walked away from a concept which is still continues to be a taboo in India today.

1.5 Current Situation in India

The current situation in India with relation to inter-religious marriage remains divided. While there are several successful inter-faith marriages that are not looked down upon, or continue to exist, there are many other which don’t get past a few months, without one spouse being killed or both committing suicide. In a country where there are successful marriages like Shah Rukh Khan and Gauri Khan, Saif Ali Khan and Kareena Kapoor, Naseeruddin Shah and Ratna Pathak Shah, there also exist Akhila and Shafin Jahan, Ankit Saxena and Shehzaadi and the very recent Amrutha and Pranay.

According to the BJP government, the current government in ruling, there has been an 800% increase in honor killing in India from 2014-2015, which must ring an alarm in not just the government and judiciary, but also the consciences of people. [6]

When there are already existing statutory rights being given to the citizens, and there are laws against honor killing, the only people to blame are the ones committing these heinous crimes in the name of “honor” and in the name of their religions. Many who commit these crimes belong to educated families, while many belong to non-educated families coming from a rural setting. Thus it cannot be said that people need to be made aware of the idea of inter-religious marriages. Many religions condemn marriages which are unequally yoked; however, in front of the law, there are statutory provisions which make it possible and legal. This also means that no one, not a single person, belonging to any religion has the right to take always this legal sanction from another, or right to kill them because they have allegedly caused dishonour to their families.

The judgement that is highlighted in this paper is ‘Shafin Jahan v. Ashokan K.M and Others’ [7] Criminal Appeal No.366 of 2018.

There have been several cases which have come up in recent times where the High Court is giving erroneous judgements with regard to ‘Right to Marry’. High Court of Kerala in recent times has passed two orders which give right of custody of a major, sane mind, consensually wedded girl, to her father. This is not only wrong on legal grounds, but also moral grounds, where the view of the High Courts is that women are a commodity of the father. These orders, rightly so, have been overruled in the Supreme Court of India, giving hope to the youth of India, who choose to love beyond the religion they are born into.

CHAPTER 2: Judgement of ‘Shafin Jahan v. Asokan K.M & Ors.

2.1 Facts of the Case

Hadiya, known as Akhila before she converted to Islam, was born to Hindu parents. She was brought up in a Hindu family, according to Hindu traditions and rituals. On January 6^th, 2016, she went missing from her house. Hadiya’s parents filed a missing person’s report of their daughter and also filed an FIR against two of her roomates, Jaseena and Faseena, and also their father Abu Bakhr. The alleged allegations against the accussed were that they had forcefully converted their daughter, Akhila to accept Islam, and currently, had taken her away, against her will.

During this time, Hadiya was already married to Shafin Jahan, her husband who she had been married to under the Muslim Law. Ashokan, Hadiya’s father also filed a Writ Petition of Habeas Corpus under Article 136 of the Indian Constitution. In his petition, his prayer to the court was for the court to give custody of his daughter and annul her marriage with Shafin Jahan.

The main facts of the case lie on five important particulars, which are given below as follows:

Firstly, Hadiya had chosen to convert to Islam. She claims that this was not under any undue influence, but her own free will and conduct. She was impressed by the character and devout personalities of her two Muslim friends and wanted to know more about the religion. She, at no point admitted that her friends forced anything onto her. She was attracted to the Muslim faith and wanted to know more about the tenets of the Islamic beliefs and faith. However, the High Court of Kerala and Hadiya’s family had reason to believe that she had been converted under undue influence. These reasons include that Jaseena and Faseena’s father, Abu Backer belonged to a Muslim organization called Students Islamic Movement of India which is a radical Islamic Organization which has been banned by the government. The stated mission of SIMI is the liberalization of India from Western materialistic culture and converts the non-believers to Islam. However, it has been described by the Indian Government as a terrorist organization. According to the petitioner, three of them ( Jaseena, Faseena and Abu Backer has misled, misguided and forced Hadiya to convert to Islam.

Backer was arrested under 3 sections of the IPC, Section 153 A, Section 295 A and Section 107 of the Indian Penal Code.

“ [153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the partici­pants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.—(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious wor­ship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.”[8]

“ [295A. Deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs.—Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of ²⁷³ [citizens of India], ²⁷⁴ [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.”[9]

“107. Abetment of a thing.—A person abets the doing of a thing, who—

(First) — Instigates any person to do that thing; or

(Secondly) —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly) — Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to dis­close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”[10]

On January 19^th, 2016, the missing daughter Hadiya, made an appearance in the High Court of Kerala, while also filling a petition asking to be impleaded to be added as a respondent on the petition filed by her father. According to the affidavit which was affixed in support of the claim to be added as a respondent, she clearly states that she was impressed by the timely prayers of her Muslim friends, and wanted to know more about Islam. She took to the internet to know about the religion. She claims that she had kept her faith a secret to her parents for the past few months. She felt locked up at home and was pressurized to perform Hindu rituals which she was not comfortable to perform, thus she left home and Abu Backer helped her join an organization which taught Islamic special courses for converting to Islam. In order to join the course, Hadiya had to execute an affidavit which stated and testified that she was converting to Islam and this was not being done under any undue influence or forcefully. After which, she went to college with a head scarf to display a public proclamation of her acceptance to Islam. A friend of hers at college after seeing this decided to inform Hadiyas parents and make them aware of the fact that Akhila was now Hadiya.

On the same day she received a call from her mother saying that her father had met with an accident, and ordered her to come soon as soon as possible. However, she knew that this was just a ruse to get her back to the house on the pretext of her father meeting with an accident. When she refused to come back home, her father, also the petitioner in this case threatened to commit suicide if she didn’t come home.

The court on January 19^th,  2016,  ruled out that Hadiya had not been under any illegal confinement, as the petitioner had earlier stated in his plaint. However, another Writ Petition was filed on August 16^th, 2016, with regard to Hadiya being taken out of the country. After this the allegations of forceful conversions came up again.

The High Court of Kerala, in their erred order held that the woman shouldn’t be allowed to cohabitate with her husband, instead, should be living with her parents, while, the allegations of her going to Syria and her involvement with terrorist groups were to be investigated.

2.2 Questions of Law (Arising out of the SLP)

The question of law that were raised in the course of this case were:

1. Whether the High Court of Kerala had the power to annul the marriage of Hadiya and Shafin Jahan? If so, on what grounds could the marriage of two majors, with consent on both sides, be annulled?

The High Court was unable to answer this question, as to why they were not allowed to cohabitate together during the course of the trial, even though they were legally married. Also, the annulation of the marriage was done on no legal grounds, rather on the sentiments of the parties who filed for the annulment. This brings out of the non-progressive side of the courts, where it is just assumed that a woman could either belong to her husband or to her father, and not just an individual entity of her own.

2. Whether the High Court of Kerala has errored in taking upon the second course of habeous corpus from the same petitioner.

According to Ghulam Sarwar v. Union of India, it was noted that “The present petition was filed in this Court under Article 32 of the Constitution on May 12, 1966 for issue of a writ of habeas corpus against the respondents directing them to set him at liberty on the ground that the provisions of the Act were invalid.[11]” However, this court never gave a lawful reason as to why the same petition was heard again.

1. When the detenue, who is a major and a sane person, has repetedly admitted infront of the court and through several affidavits that she has not been forcefully converted and was not under any illegal confinement by anyone, how can the court allow another writ petition and keep her in confinement for months, and then give custody of her to someone without her permission.
2. How can the court annul the marriage of two majors without giving them any notice and not giving them the opportunity to be heard?
3. When can the court exercise its parens patriae jurisdiction over annulling a marriage?
4. Can a Muslim marriage be annulled on grounds that the courts permission was not taken?
5. Does the HC decide who the major wants to marry or not?
6. Whether the judgement is in violation of Article 21 and Article 25?

2.3 Judgement of the Court

The Hadiya case gained a lot of recognition and acted as a landmark judgement for many similar cases where the Supreme Court after setting aside the High Court of Kerala’s order, came to the conclusion that a major man and woman, regardless of the religion they belong to, have all the rights to marry each other, and are under no legal obligation to take permission from their parents.

The Supreme Court allowed the NIA investigations to take place, however, they clearly states that “the validity of the married couple need not be investigated” as the court had already taken a clear stand on it.

During the High Court Bench which was seated by Justice Surendra Mohan and Justice Abraham Mathew had made some controversial observations like: “a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways” and “her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.”

Statements like the above just go to show the perspectives of judges in our courts, and the reason why many judgements regarding “marriage” in India are stalled and annulled by the court. Recently, in another case, Nandakumar vs The State Of Kerala on 20 April, 2018, stated the same thoughts as the Shafin Jahan case. However, in this case the valid ground was that the boy was a minor during the marriage, thus the marriage being voidable.

However, in the present case, the only problem was the fact that the woman chose to convert to Islam and chose to marry a Muslim, against the choice of her parents.

CHAPTER 3: Issues surrounding the objection of ‘Right to Marry’

3.1 Honor Killing

Honor Killing in India is a term where there is an intense from of control of one person over the other. This intense form of control is usually from a disciplinary party, onto the weaker one. In India, we are taught to respect our elders, and are brought up under the notion that an older person can never be wrong. We are taught not to bat an eye against someone older than us, especially in a patriarchal society.

Most families are patriarchal and everyone submits themselves to the most senior male member of the family. Recently, the government of India has started to think seriously about the increasing number of honor killings which have taken place in India. There is a necessary need to put an end to these heinous crimes. There have been several cases which have been brought to court, plus several punishments which have been given out by the court. However, there is still a rampant on going set of crimes which are being instituted in the name of “honor”.

Given below are all the laws which have been constituted against Honor Killing:

Existing Penalties under Indian Penal Code:

Sections 299-304: “Penalizes any person guilty of murder and culpable homicide not amounting to murder.  The punishment for murder is life sentence or death and fine.  The punishment for culpable homicide not amounting to murder is life imprisonment or imprisonment for upto 10 years and fine.”[12]

Section 307: “Penalizes attempt to murder with imprisonment for upto 10 years and a fine.  If a person is hurt, the penalty can extend to life imprisonment.”[13]

Section 308: “Penalizes attempt to commit culpable homicide by imprisonment for upto 3 years or with fine or with both.  If it causes hurt, the person shall be imprisoned for upto 7 years or fined or both.”[14]

Section 120A and B: “Penalizes any person who is a party to a criminal conspiracy.”[15]

Sections 107-116: “Penalizes persons for abetment of offences including murder and culpable homicide.”[16]

Section 34 and 35: “Penalizes criminal acts done by several persons in furtherance of common intention.”[17]

Section 300: “Introduce “fifthly” clause to Section 300 of IPC which at present defines “murder” under four categories. The additional definition would make khap-dictated honour killings a distinct offence and make all those who participate in the decision liable to be tried for the main charge, that is murder, and liable maximum penalty, death.”[18]

Honor Killing is just another form of violence, which has the goal of restoring the honor of oneself, family or community. In India, women are devalued and seen as lower than men, and thus most victims of Honor based killings happen to be women. These are not exclusively done against women, as in many cases there are crimes where the woman belongs to a high caste or high social status, and the family members of the girls feel as if she has committed a crime against the family and brought down the “honor” of the family by indulging with someone from a lower class or caste. The person committing the crime believes that he is restoring the honor of the family by punishing the person who has brought disgrace amongst the family.

Most common reason for honor killings to occur is due to marriage outside of caste or religion. This seems to be the ultimate cause which allegedly brings disgrace to a family. The first few forms of honor killing were seen during the time of partition of India, between 1947-1950, there were a lot of women who were forced to marry men from a different religion, and vice versa. Many tried to hide their religious identities in order to be saved from any sort of social exclusion. Many men and women were later hunted down, and killed, in the name of honor. The preservation of the honor of the family seemed to be the only reason as to why one would commit honor killing. The time during the partition was very hard on the younger generation would were forced to mingle with other young people of the same age, however from a completely different religion. During the tussle between the two religions, it was the young who suffered, proving that love does not know how to decipher between religions. Also, during this period of time, the influence of society and religion was rife, making it more difficult for couples to flee from the wrath of their families or societies. Especially, Hinduism and Islam are two strong opposing religions in India, which made it harder from Hindu and Muslim couples to hide their relationships. Either way, they were looked down upon, not just by one religion, but by both.

The partition, I believe, was the start of a trend of honor killing in India, and brought it in circulation. It is unfair to say that this form of violence is only practiced in rural areas where peoples mindsets are narrow and they do are stuck in their archaic traditions because in a recent case in September, 2018, a father paid a large amount of money to a hitman to kill his daughters husband just because she married a man who belonged to a different caste, which was lower than her caste. After listening to incidents such as these, one might wonder, is this violence out of love, or out of pride? In this case, the father was quoted saying that he did not care if we went to jail for this, as long as his daughters husband, was dead.

The daughter belonged to a high caste Hindu family, while the victim, aged 23, was a Dalit Christian from the same state, Telangana.

3.2 Sexual Terrorism against Women

Where does one draw a line between protection of a woman and harassment and loss of her own free will? This question is often debated upon and ends in the clerics often winning because religiously also, Islamic woman are put down. On the other hand, Western woman have fewer rules but are most harassed, yet they have the rights to speak up? What would a woman want: Free will leading to damage OR No free will- being under your husband’s radar?

The Article 1 of the UDHR says that “To achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”[19] This includes women and their rights. This article is been signed by all the nations under the United Nations, but not really practiced by many. Women issues everywhere are a sensitive topic. Example- One might see Russia as a developed country practising rights of women, but being a super power developed country- its flaw against Women empowerment still exists. This issue gives us a background from the United Nations and its past and present with Human Rights issues and how they have been tackling it.

Sexual terrorism is an essential topic of discussion in a lot of countries with the crime rate against women reaching high peaks this year. As the amount of sexual terrorism rises in any society, so does the blame game. Every politician is trying to find a scapegoat for himself, and passing the buck to another political party. How does one reduce sexual violence when everyone is busy take care of only themselves? To do so, one needs to rise up for his entire community. When a community stands up together, it gives rise to many more, and these many more communities help to bring a change in the nation.  In many Asian countries, Western culture influence is the reason given to justify the crime.

2018 and India still remains a country where women are looked down as a burden and a load to the family. The mindset needs to change, and the change needs to happen now. In a country where the value of women is way lower than a value of a man, do we have hope for laws regarding safety for women? I believe that India has the potential to do anything. How much ever the government is criticized, it does not lubricate the minds of the politicians. New ways to approach the government has to come up. New ways to keep the women safe need to come up. News ways to change the mindset of everyone needs to come up

3.3 Social Exclusion of minorities in India

 Social Exclusion is a word that barely matters if you’re privileged enough to be born in a society where discrimination does not occur based on your sex, colour, sexuality, class or religion. However, if you are not privileged enough and happen to be on the other side of the “privilege spectrum”, you are bound to be marginalised. To be marginalised means to be excluded from what society perceives to be “normal”. India, a nation which brags about its rich and varied heritage also happens to be the same nation where ‘untouchability’ arose. Everyone talks about the marginalisation of Dalits in India, and even recognizes it as an issue, but however, many are not yet aware of the marginalisation of Dalit Christians and Muslims in India. They do not get to relish the rights which should be their fundamental rights in the Constitution of India. They do not even get recognized as Dalit, just because they choose to follow a different religion. There needs to be more conversation over this topic and the inclusion of them as Dalits so that they can benefit from the protective discrimination rights which are rightfully theirs too.

According to the Mandal Commission Report, casteism among the Indian Christians is as prevalent as in any other community. [20] Based on one background, they are further divided into smaller denominations. In Kerala, the lower caste Christians removes their headdress when they are around Syrian Christians, who are meant to be the rich, higher caste Christians. Even with regard to place of worship- members of the same church perform religious rituals separately in separate buildings.

The Mandal Commission Report has concluded without any doubt that among Indian Christians caste is a reality. According to the report “social and educational backwardness among the Christian community is more or less the same as among Hindu communities. Though the caste system is peculiar to Hindu society, in actual practice, it also pervades Christian society. The Christians of Scheduled Caste Origin (Christian Dalits) suffer the same disabilities as their counterparts belonging to other religions.”[21]

In 1935, the British who were then ruling India took note of the suffering of the Dalits and acknowledged the fact that they belonged to lower castes and something had to be done for their upliftment. In this course, they made a list of lower castes and their names were reflected on a schedule.[22] They were given certain special privileges and reservations. These castes were not distinguished by religion, thus, everyone, be it Hindu, Muslim, Sikh, Christian, under the purview of being “Dalit” could benefit from these special privileges.

After 1950, the Constitution of India, through a Presidential order, took away all the rights of Dalits who were not Hindus. Thus, these affirmative actions for Schedule Caste were only for Hindu Dalits and no one else. The Dalits from other religions opposed this order, and so the Article was amended twice, once in 1956 and 1990, respectively for the Sikh and Buddhist Dalits. While the cries of the Christian and Muslim Dalits were in vain. [23]

There have been several Writ Petitions which have been filed in the Supreme Court of India regarding the inclusion of Dalit Christians and Muslims in the Scheduled Caste list mentioned in the Constitution of India. In 2004, Dalit Christians filed a Public Interest Litigation in Supreme Court (WP.180/2004).[24] The question that was raised is whether Dalit Christians and Muslims were being deprived of the benefits of reservation which should be rightly be theirs, being Dalits. The petitioners also contested that this would be discriminatory against the Dalit Christians and Muslims, under Article 14 of the Indian Constitution which calls for equality for all. The main prayer of the petition was for equal scheduled caste rights for Dalits Christians in India.

Dalit Christian and Muslims are marginalized, firstly for being converts, giving up the religion they were born into, and secondly, for being Dalits. One must think, with all the education and modernization that India is going through, matters like this would subside. Very little is spoken about the tragedy Christians and Muslims go through daily, that too, without the law providing them with the protective affirmative action which the Constitution should provide them with. Dalit Christians and Muslims experience the same amount of discrimination as a Dalit Hindu, then why is it that one is protected by the government, while the others are not?

CHAPTER 4: Constitutional Rights and Statutory rights related to inter-religious marriages

4.1 Special Marriage Act, 1954

According to the Special Marriage Act, 1954, anyone, irrespective of their religion can be legally married to anyone of the opposite gender. Under this act, marriage contracted under this act is known as a court marriage. A marriage under this act is governed by the secular laws of the country, and not personal laws, like the Hindu Marriage Act. The Hindu Marriage Act gives rise to personal laws and any marriage which is solemnized under the Act is only to be between two Hindus, which also mean Sikhs, Jains and Buddhists. The rights and duties which arise out of this act are also governed by the secular laws and not personal laws. The reason this act came up was to ensure that a valid marriage between two majors from different religions was possible to be recognized, by law, and also a way for Indians residing in foreign countries, to be legally recognized in India. All the formalities and ceremonies to e solemnized must be done with accordance to the Act. This Act has been a benefit for NRI’s as it provides for the employment of diplomatic and consular officers as marriage officers (registrars), for formalizing and processing marriages between citizens of India, in a foreign country.

However, there are certain conditions that need to be satisfied in order to legalize the marriage, these are given as follows:

“1. Neither of the two has a spouse living, at the time of the marriage.

2. Neither of the two is incapable of giving a valid consent to the marriage due to unsoundness of mind.
3. Neither of the party has been suffering from mental ailments to such an extent, that they are unfit for marriage and the procreation of children.
4. Neither party has been subjected to recurrent attacks of epilepsy or insanity.
5. At the time of marriage, the groom should be of twenty-one years of age and the bride should be of eighteen years of age.
6. Both the parties are not within the degrees of prohibited relationship; provided where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.
7. If the marriage is solemnized in the State of Jammu and Kashmir, both parties should be the citizens of India, domiciled in the territories to which this Act extends.
8. When a marriage is intended to be performed in accordance with the Act, the parties of the marriage shall give notice in writing, in the Form specified in the Second Schedule to the Marriage Officer of the district, where the marriage is going to be solemnized.
9. The marriage shall be solemnized after the expiration of thirty days of the notice period that has been published under sub-section of the Act.
10. At least one of the parties going to perform the marriage should have resided for a period of not less than thirty days, immediately preceding the date on which the notice for marriage is issued to the registrar.
11. The marriage officer is bound to display the notice of the intended marriage, by affixing a copy to some conspicuous place in his office.
12. If the marriage officer refuses to solemnize the intended marriage, then within a period of thirty days of the intended marriage, either party can prefer an appeal to the District Court, within the local limits of whose jurisdiction the marriage officer has his office. The decision of the District Court, regarding the solemnization of the intended marriage, shall be final.”[25]

This Act aims to put forward secular rights and duties for an individual, who does not want to marry under the personal laws. This is why it is considered one of the most secular laws in civil matters. This act also helps in strengthening ties between religions and castes.

4.2 Article 19 and Article 21 of the Indian Constitution

The court in Shakti Vahini v. Union of India, stated, “Honour killing guillotines individual liberty, freedom of choice and one’s own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy”[26]

Article 19 (1) of the Indian Constitution, clearly states that an individual has the right to freedom of speech and expression, which means that two adult citizens can get into a marriage with both their consents and practise this right of expression which is being provided to them in Article 19. This Article focuses on the fundamental aspects of life, gives you the recognition you need in order to practice a right. This also means that one does not need to succumb under the pressure of parents or the society. Our society is so pressurised with the term “log kya kahenge?” ie. “what will people say?”,  that there is zero to no progression in this country. While, there are many couples, mostly in urban India, who marry within castes and religions, there are many who are penalised heavily by the society for the same.

Recently, the court also held, “The human rights of a daughter, brother, sister or son are not mortgaged to the so-called or so-understood honor of the family or clan or the collective. The act of honor killing puts the rule of law in a catastrophic crisis.”

“There cannot be any assault on human dignity as it has the potentiality to choke the majesty of law. Therefore, we would recommend to the legislature to bring law appositely covering the field of honor killing,”[27]

CHAPTER 5

Conclusion

The key essence of the Indian Constitution is to ensure that rights of an individual are upheld and maintained by the court. Under, the fundamental rights given to individuals, the right to marry whomever they want continues to be an argument which doesn’t seem to reach the masses of the Indian crowd, considering the amount of violence that gets initiated in the name of religion and marriage.

“When two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.[28]”, held the Supreme Court which consisted of the three bench judge, ex Chief Justice Dipak Mishra, Justice Chandrachud and Justice Khanwilar. They also opined that the Khap Panchayats or the any other force trying to hurt the couple is completely illegal.

We get a clear picture of what the judiciary expects from ‘right to marry’, which since statutory rights are already passed, the legislation is also very strong opinion, and that being that an individual has the right to choose whomever he or she wants me marry when it is consensual from both side, barring certain clauses, when either of the party is a minor.

There are several preventive measures that the government can take, and it all starts with equal provision of the law. It is said that the law is supreme, and every else beneath it. Thus, many who want to see the upliftment of these marginalized Dalit Christians and Muslims spoke out, in hopes of getting equal provision of the law. However, after several Writs Petitions being filed in the High Court and Supreme Court, not many have materialized.

I believe that at the heart of the problem is a problem of our collective hearts and minds- Society’s Conscience. The change has to start from within. The root of the rot has to be dealt with. One needs to recognize the truth that though many individual Dalits have overcome discrimination, becoming successful professionals, politicians and entrepreneurs but sadly they remain a minuscule speck on the vast horizon of this great land. One needs to ponder on the question as to why this huge disparity exists. The fact that the Indian Government did away with the 1935 act and revised it in1950 shows that there was an acknowledgement of the problem.[29] But why deny privileges to a certain segment, specifically Muslim and Christian Dalits while conferring the said advantages to other Dalits. Is there a more insidious agenda to this so obvious bias? Are certain segments of our society still not liberated after 71 years of independence?

These questions need honest answers and honest answers can only be had if we create a climate of dialogue, a spirit of tolerance and a willingness to hear the other and try to understand even if one does not agree. Freedom of expression, action and belief are under extreme stress today. We need to hear different narratives and allow these to shape our thinking; our perspectives need to be broadened to allow others to live and thrive. We need to correct past discriminations. Candle light vigils, protest marches, vociferous speeches all have a role. But finally one needs to touch the law makers of the land. It takes a generation to change deep rooted mindsets, but it is never too late to start.

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[1] Shakti Vahini v. Union of India, WP (Civil) No.231 of 2010

[2] Protection of Women and Domestic Violence Act,2005

[3] Badri Prasad v. Dy Director of Consolidation,1978, 1978 AIR 1557, 1979 SCR (1) 1

[4] Indra Sarma v. V.K.V Sarma, 2013

[5] Article 26, The Indian Constitution, 1950

[6] Attacks against Muslims, Dalits grew sharply in India under Modi: US report, India Today, February 10^th,2017

[7] Shafin Jahan v. Ashokan K.M and Others, CRIMINAL APPEAL NO.366 OF 2018 (Arising out of S.L.P.(Crl.) No.5777 of 2017)

[8] The Indian Penal Code,1860, Section 153 A

[9] The Indian Penal Code, 1860, Section 295 A

[10] The Indian Penal Code, 1860, Section 107

[11] Ghulam Sarwar v. Union of India,  1967 AIR 1335, 1967 SCR (2) 271

[12] The Indian Penal Code,1960, Section 299-304

[13] The Indian Penal Code, 1960, Section 307

[14] The Indian Penal Code, 1960, Section 308

[15] The Indian Penal Code, 1960, Section 120A, 120 B

[16] The Indian Penal Code, 1960, Section 107-116

[17] The Indian Penal Code, 1960, Section 34-35

[18] The Indian Penal Code, 1960, Section 300

[19] Article 1, UDHR

[20] BP Mandal, Commission of  Backward Classes under the chairmanship of B.P.Mandal, 1980

[21] Reports of Commissions, The Mandal Commission Report of 1980, as viewed on 30^th August,2018 on http://www.dalitchristians.com/html/commission.htm

[22] India’s Dalits still fighting untouchability, 27^th June, 2012, BBC

[23] Staff Reporter, Dalit Muslims, Christians demand Schedule Caste Status, 16^th November,2012, The Hindu,

[24] Neelam Gaikwad, Press release: Scheduled Caste status to Dalit Christians and Dalit Muslims , 27^th October, 2017

[25] Validity of Marriage under  Special Marriage Act, 1950, Helpline Law, Legal Solutions Worldwide,2001-2018

[26] Shakti Vahini v. Union of India WRIT PETITION (CIVIL) NO. 231 OF 2010

[27] The Hindu, Krishnadas Rajagopal, 28^TH March,2018

[28] Shakti Vahini v. Union of India, WRIT PETITION (CIVIL) NO. 231 OF 2010

[29] A memoir of the lowest caste, The Economist, July 27^th,2017

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 AUTHORED BY:                                        

NAMRATA MOHAPATRA

AMITY LAW SCHOOL, NOIDA

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