“Love Jihad – A threat to interfaith love?”

Reading time : 10 minutes

Introduction

Jihad also pronounced as Jehad, in Islam, means meritorious struggle or effort. However, it is contextual and it has been erroneously translated in the West as “holy war” waged on behalf of Islam as a religious duty. Jihad, particularly in the religious and ethical realm, refers to the human struggle to promote what is right and to prevent what is wrong. [1]

Love Jihad is an unofficial term coined by the proponents of Hindutva, purporting to an alleged campaign by Muslim men to marry women from other religions and convert them to Islam under the pretext of love. This alleged conspiracy theory is noted for its similarities to the anti-semitic tropes of Jewish world domination. It also carries the paternalistic and patriarchal notion that women are mere possessions of men and whose “purity” is tainted and is equivalent to a territorial conquest.

History –

Allegations to Love Jihad first rose to national awareness in September, 2009 in Kerala and Mangalore, where, according to the Kerala Catholic Bishops Council some 4,500 girls had been targeted. And the Hindu Janajagruti Samiti in Dakshina Kannada district of Karnataka, claimed that around 30,000 girls had been deceived by Muslim men, often referred to as “love Romeos” in the state. In July 2010, Kerala’s the Chief Minister, V.S. Achuthanandan speculated that Muslim groups such as the People Front of India were using “money and marriages to make Kerala a Muslim majority state.

In the same year, the Kerala High Court in the case of Shahan Sha V. State of Kerala [2], ordered an inquiry into the matter. The Karnataka High Court stated in case involving a woman converting to Islam to marry a Muslim man had national ramification and the woman to be restored to her parents, while the police continued with the investigation of the case. After the investigation, the Karnataka police elucidated that 404 girls went missing in that period and they were able to track down 332 of them. And most of these girls were Hindu by religion, who had eloped to marry Hindu men.

In August-September 2013, clashes took place between the Hindu and Muslim communities in the Muzaffarnagar district of Uttar Pradesh, resulting in the death of nearly 60 people. The cause of such rioting oscillates between a traffic accident and an eve teasing incident. The initial cause was a minor traffic accident that took place between some youths, which then escalated with religious connotations. The subsequent cause included the case of a girl from a Hindu Jat community, who was allegedly harassed by a Muslim man in an eve teasing incident. The relatives of the girl killed the Muslim youth, in retaliation. The two brothers were then lynched by a Muslim mob. FIRs were filed and the investigation continued. It made the volatile communal cauldron of western Uttar Pradesh explode. Members of both the communities attacked each other and was temporarily brought under control by the police, but fresh riots broke out in September 2013, resulting in indefinite curfew and deploying of the army to help maintain law and order in the district.

During the reappearance of the controversy in 2014, protests turned violent at growing concern. In 2014, in the cases of Smt. Noor Jahan Begum @ Anjali Mishra and Another V. State of U.P. and 4 others [3], the Allahabad High Court dismissed a batch of writ petitions, filed by couples seeking protection because they got married after the woman converted from Hinduism to Islam and then performed the nikah. The court under the bench of Surya Prakash Kesarwani (J.) had asked them, “Whether conversion of the religion of a Hindu girl at the instance of a Muslim boy, without any knowledge of Islam or faith and belief in Islam and merely for the purpose of marriage (nikah) is invalid. The court has also reaffirmed the Supreme Court’s stand in the case of Lily Thomas V. Union of India, Writ Petition (Civil) No. 490 of 2005, [4]. It observed that conversion by an individual to Islam can be said to be bona-fide if, “he/she is major and of sound mind and embraces Islam with his/her own free will and because of his/her faith and belief in the oneness of God (Allah) and prophetic character of Mohammed.” The court also added that if the conversation is not “inspired by religion feeling” and is done “with the object of creating a ground for some claim of right, then the conversation shall not be bona-fide.”

In early 2016, Hadiya’s father, Ashokan K.M. had filed a missing person’s case in the local police station, after she disappeared from her college campus. When he found out about her marriage and also the fact that she has converted to Islam, her father filed a writ petition of hebeas corpus in the Kerala High Court. He alleged that his daughter was forcefully converted to Islam and was being held against her will by her classmates. Hadiya however testified that she was staying with A.S. Zainaba, president of NWF (National Women’s Front) and a member of its parent radical Islamist organization People’s Front of India. She had met with Zainaba at Satya Sarani, an educational institution and conversion centre, with her own consent, out of her free will. Hadiya’s father also alleged that her husband, Shafeen Jahan had links to extremist Muslim organisations and is likely to transport her out of the country. Hadiya maintained throughout the High Court proceedings that her conversion to Islam as well as her marriage was of her own choice. However, in May 2017, the Kerala High Court annulled their marriage on the grounds that neither the bride’s parents were present during the marriage nor did they give their consent to the marriage and granted custody over Hadiya, not taking into consideration the fact that she is a legal adult. Hadiya’s husband, thereafter approached the Supreme Court to challenge the annulment. On the first day of arguments, the bench served an order to the National Investigation Agency (NIA) to investigate if there are any organized groups attempting to recruit Hindu women as terrorists by getting Muslim men to convert and marry them. Such investigation to be directed under the bench of Retd. Justice R.V. Raveedran. The NIA had submitted that her conversion and marriage was not the only one, rather a pattern of such cases has been detected in the State, involving the same people. Evidence adduced that Hadiya met Shafeen Jahan through a matrimony website was totally false. On 8th March 2018, the Supreme Court overruled the annulment of Hadiya’s marriage by the Kerala High Court and held that she had married out of her own consent. However, allowing NIA to continue with the investigation into the matter of allegation of a terror dimension. The Supreme Court also asked whether the High Court has the power to annul the marriage of an adult under Article 226 of the Constitution. [5][6]

In September 2020, Uttar Pradesh Chief Minister, Yogi Adityanath asked his government to come up with a strategy to curb religious conversions in the name of love and also considered to pass an ordinance for it, if required. In the month of November, same year, the Uttar Pradesh state cabinet cleared the ordinance and The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020 was promulgated. The Ordinance specifies the procedure for undergoing religious conversion and prohibits unlawful religious conversions. This was followed by the Madhya Pradesh government promulgating the Madhya Pradesh Freedom of Religion Ordinance, 2020 in the month of January, 2021.

Anti-conversion Laws in India –

The Constitution of India under Article 25 guarantees to all its citizens the freedom to profess, practice and propagate any religion, subject to public order, morality and health and also allows all the religions to manage their own matters of religion. Till date, no central legislation regulating or restricting religious conversions has been passed by the Parliament, and the Union Law Ministry also stated that the Parliament does not have the competency to legislate and pass anti-conversion laws. However, many states have, over the years, enacted ‘Freedom of Religion’ legislation to restrict unlawful religion conversions. The first ones being Uttarakhand and Himachal Pradesh, to introduce a clause regarding marriages. Uttarakhand’s Freedom of Religion Act,2018, prohibits conversion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. Punishment includes imprisonment up till 5 years with fine, making it a non-bailable offence. The state of Himachal Pradesh also passed a similar law in 2019.

Identifying a rise in the cases of unlawful religious conversions the Uttar Pradesh Law Commission proposed to enact a new law to regulate religious conversions. Thus, in November 2020, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was promulgated by the Uttar Pradesh state government. Following this, the Madhya Pradesh state government promulgated the Madhya Pradesh Freedom of Religion Ordinance, 2020, in the month of January, 2021. These Ordinances specifies the procedure for undergoing religious conversion and prohibits unlawful religious conversions. Marriages, under the ordinance would be declared void, if done with the sole purpose of unlawful conversion. Violating the provisions of the Ordinance would result in imprisonment of upto 10 years with fine. In addition, the Madhya Pradesh Ordinance provides protection to women and children. Children born out of marriages involving unlawful religious conversions are considered to be legitimate provides them with the right to property of only the father. Furthermore, the Ordinance provides for maintenance to be given to i) a woman whose marriage is deemed to be unlawful under the Ordinance; ii) her children born out of such a marriage.[7]

Anti-conversion Laws and its Constitutional Validity –

The two ordinances, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and the Madhya Pradesh Freedom of Religion Ordinance, 2020 objects at restricting unlawful religious conversions and marriages (to some extent). It can be said, that these ordinances are, arguably, outrageous to personal liberty, rule of law and equality before law.

Both the Uttar Pradesh and Madhya Pradesh Ordinances prohibit conversion of religion through means such as i) misrepresentation, force, undue influence and allurement, or ii) fraud, or iii) marriage. It also prohibits a person from abetting, convincing, and conspiring to such conversions. Marriages would be declared as null and void if i) done with the sole purpose of unlawful conversion or ii) religious conversion was not done as per the procedures specified in the Ordinance. Article 21 of the Constitution guarantees to its citizens that no person shall be deprived of his life or personal liberty. It can be said that marriage is the most personal and probably the most important part of one’s life, especially in India. And having the right to choose whom to marry also falls under this context. The Supreme Court in the case of Francis Coralie Mullin V. The Administrator, Union (1981) [8]said: “We think that the right to life includes the right to live with human dignity and all that goes along with it.” The Supreme Court also said in Lata Singh V. State of Uttar Pradesh [9], “…once a person becomes major, he or she can marry whosoever he/she likes.” The Supreme Court has observed that the decision of having a family, getting married, procreation and sexual orientation are “integral to the dignity of the individual.” Any hindrance whether legal or otherwise, might result in the infringement of Article 21 of the Constitution. In the land mark case of KS Puttaswamy V. Union of India, the Supreme Court held that the Right to Privacy is protected by the Constitution. It is a fundamental right and autonomous decision-making is a key aspect of privacy. Section 4 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 enables any person who is related to the one converting, by blood, marriage or adoption to lodge a complaint. Complaint can be lodged by the relatives of the supposedly aggrieved person, but lodging a complaint does not necessarily prove that such conversion was unlawful, i.e., done through means such as force, fraud, misrepresentation, undue influence, or marriage. A person may convert to another religion by his or her own choice. Article 25 of the Constitution guarantees its citizens the freedom to profess, practice and propagate any religion. Another clause of the mentioned Ordinance says that whoever reconverts to their original religion shall not be considered as having changed their religion. This, to some extent, has opposed secularism, which is a part of the basic structure of the Constitution and gives all the religions equal status in the eyes of law. In the case of Shafeen Jahan V. Ashokan K.M. (2018) [10], the Supreme Court recognized the “right to marry a person of one’s choice an integral part of Article 21 of the Constitution” and rebuked the High Court of Kerala that the courts are “duty-bound not to swerve from the path of upholding our pluralism and diversity as a nation.”

In Shakti Vahini V. Union of India (2018) [11], the apex court observed, “life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of the identity of a person.”

Thus, arguably, the anti-conversion laws seize constitutionally-guaranteed rights of women and couples seeking to marry outside the religion of their birth.

Conclusion –

Addressing the question, is love jihad a threat to interfaith love?

One can say that marrying somebody from a different religion, especially between Hindu-Muslim communities, has always been a challenge in India. Although it is a secular, democratic country, the family’s pull and tradition, in matters like marriage, etc., remains strong. Monogamous, arranged, heterosexual and same community marriages are idealized. The Special Marriage Act, 1954, allows interfaith marriages, but having said that, authorities are to be provided with a month’s notice containing the personal details of the couple, incidentally giving an opportunity of the families to intervene and terminate their wedding.

Companies depicting interfaith romances and marriages have to face severe outrage. Last year, the jewelry brand Tanishq was forced to withdraw an advertisement showing an interreligious baby shower. In the state of Madhya Pradesh, the state police registered a complaint against Netflix India’s executives after a Hindu nationalist group objected to a scene in its show “A Suitable Boy.”

Marriages are considered to be a powerful tool to bridge the gap between different castes and religions. Inter-faith marriages can help bridge the gap between such social groups. Such marriages should be encouraged in the society. The Constitution of India guarantees its citizens the right to practice any religion and the right to freedom and choice. But ironically, laws are being implemented to curb such rights.

References –

1) Britannica.com, Jihad Islam  https://www.britannica.com/topic/jihad

2) Shahan Sha V. State of Kerala, 9 December, 2009, B.A. No. 5288 of 2009 (Kerala).

https://indiankanoon.org/doc/576406/

3) Smt. Noor Jahan Begum @ Anjali V. State of Uttar Pradesh & 4 others on 16 December, 2014, Writ Petitions.

https://indiankanoon.org/doc/22354729/

4) Lily Thomas V. Union of India & Others on 10 July, 2013, writ petitions (civil) no. 490 of 2005.

https://indiankanoon.org/doc/63158859/

5) Hadiya Marriage Case – Supreme Court Observer

https://www.scobserver.in/court-case/hadiya-marriage-case

6) Shafin Jahan V. Asokan K.M. on 8 March, 2018, Criminal Appeal No. 366 of 2018. https://indiankanoon.org/doc/18303067/

7) Anti-Conversion Legislation: UP & MP Ordinances.

https://www.prsindia.org/theprsblog/anti-conversion-legislation-comparison-up-ordinance-other-state-laws

8) Francis Coralie Mullin V. The Administrator Union on 13 January, 1981, AIR 746, 1981 SCR (2) 516.

https://indiankanoon.org/doc/78536/

9) Lata Singh V. State of U.P. & Another on 7 July, 2006, Writ Petition (criminal) 208 of 2004.

https://indiankanoon.org/doc/1364215/

10) Judgement – Shafin Jahan V. Asokan K.M. on 8 March, 2018, Criminal Appeal No. 366 of 2018.

https://indiankanoon.org/doc/18303067/

11) Shakti Vahini V. Union of India on 27 March, 2018, Writ Petition (Civil) No. 231 of 2010.

https://indiankanoon.org/doc/92846055/

12) 2013 Muzaffanagar Riots – https://en.wikipedia.org/wiki/2013_Muzaffarnagar_riots

13) Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

14) Madhya Pradesh Freedom of Religion Ordinance, 2020.

Author: Aritrika Ganguly, Law Department, University of Engineering and Management, Kolkata.

Editor: Kanishka VaishSenior Editor, LexLife India.

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