INTER-RELIGIOUS MARRIAGES IN INDIA 2021: CURRENT STATUS, LEGAL
ISSUES, WAY AHEAD
The institution of marriage is one of the essential social building blocks of civil society. While
preservation of personal intimacies such as marriage is at the core of privacy1, the intrusion by
State and other non-state actors is considered as a necessary regulatory mechanism. However,
when such intrusion is backed by archaic provisions, enacted to curb consensual unions
between individuals on the premise of difference in religion or caste, the effect is an
infringement of the constitutional rights and the corruption of this pious institution.
In India, the religious personal laws govern the private affairs of Hindus, Muslims, Buddhists,
Jains, Sikhs, Christians, and Zoroastrians. A secular law enabling inter-religious/inter-caste
unions is the Special Marriage Act, 1954 (“SMA”). The objective of this act is to enable civil
marriage/registered marriage for the Indian and non-resident Indians, irrespective of their
religion/faith. The conditions required for the application of this Act, include: absence of an
existing spouse, parties competent to consent, parties not within the prohibited degree of
relations, and the male must have completed 21 and the female 18 years of age. (section 4) The
children born after the registration of marriage are considered legitimate and are entitled to
succession to the properties of their parents only. (section 18). The Apex Court thus held that
the child born out of the marriage of a Muslim man and Hindu woman was legitimate and
entitled to inherit the property of the father.2
LEGAL ISSUES
Despite the progressive objective of the Act, certain provisions create hurdles, instead of
facilitating such unions. For instance, sections 5 and 6 require the parties intending to marry
under the Act to advance notice to the district marriage officer of the area where one of the
spouses has been residing for the past 30 days, and thereafter the same is published to invite
objections. (section 7). While the intended purpose behind the inclusion of such provision was
to prevent bigamy, the motives have shifted and these provisions now aid in the harassment of
interfaith couples. Recently, the Allahabad HC, in the case of Safiya Sultana v. State of U.P.3
1
Justice KS Puttaswamy (retd) and another v. Union of India and others (2017) 10 SCC 1.
2
Mohammed Salim v. Shamsudeen 2019 SCC OnLine SC 52.
3
Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19
struck down this ‘mandatory’ requirement and made the same optional. The court citing the
landmark Aadhaar case (2017) and the Hadiya Marriage Case (2018)4, categorically opined
that such provisions ‘invaded the fundamental rights of liberty and privacy.’ The court further
noted that marriages under the personal laws do not require such notice/invitation for objections
and thus the inclusion of the same in SMA is against the ethos of Article 14 of the Constitution.
The aforementioned difficulties that the law presents & the associated social stigma are
amongst the principal reasons that prompt interfaith couples to opt for conversion. To counter
this, the ‘secular’ central law governing inter-religious marriages is ‘prorogued’ by the states
with the enactment of various anti-conversion laws.5 These laws enacted under the pretext of
preventing fraudulent religious conversions have led to unwarranted targeting of inter-faith
couples. The nonsensical trope of ‘Love Jihad’, i.e. alleged ‘practice of inducing conversion of
a Hindu woman to Islam after she marries a Muslim man by the use of coercion or deceit,’6 is
used by the right-wing Hindu Nationalist groups to justify such archaic laws. This concept was
recently flared again with the Uttar Pradesh Prohibition of Unlawful Religious Conversion
Ordinance, 2020. Such laws are not unprecedented and currently three other states, i.e.
Himachal Pradesh7, Uttarakhand8, and Madhya Pradesh9, have enacted such laws that include
provisions to prevent “conversions” only for marriage. The states of Haryana10, Gujarat,11
Karnataka,12 and Assam13 have also announced similar proposals.
The concerns raised against such laws are warranted, considering live examples depicting the
aggressive enforcement of the UP ordinance and its misuse. A news portal reported that as of
mid-January 2021, cases were filed against 91 persons, 54 arrests were made and a majority of
4
Shafin Jahan Asokan K.M., (2018) 16 SCC 368.
5
Library of Congres, State Anti-Conversion Laws in India, https://www.loc.gov/law/help/anti-conversion-
laws/india.php?loclr=bloglaw
6
THE DIPLOMAT, ‘Love Jihad’ and the Crafting of a Bigoted Law in India,
https://thediplomat.com/2020/12/love-jihad-and-the-crafting-of-a-bigoted-law-in-india/
7
Himachal Pradesh Freedom of Religion Act, 2019.
8
Uttarakhand Freedom of Religion Act, 2018.
9
Madhya Pradesh Freedom of Religion Ordinance, 2020.
10
The Wire, Haryana Will Bring 'Love Jihad' Law 'As Soon as Possible': Home Minister,
https://thewire.in/government/haryana-love-jihad-law-as-soon-as-possible-home-minister-anil-vij
11
The Hindu, Gujrat to bring law against ‘love jihad’, Gujarat to bring law against 'love jihad' - The Hindu
BusinessLine
12
The Week, Karnataka 'love jihad' law likely in next legislature session: BJP, Karnataka 'love jihad' law likely
in next legislature session: BJP - The Week
13
The Wire, Assam to Enact Laws Mandating Disclosure of Religion, Income Before Marriage, Assam to Enact
Laws Mandating Disclosure of Religion, Income Before Marriage (thewire.in)
the targets were Muslim men.14 Certain reports also claimed that weddings between consenting
adults along with parental approval, were halted and the Muslim grooms were arrested.15
Following such instances, several high courts were approached to consider the misuse and
constitutionality of such laws and ordinances. It must be noted that the Allahabad HC in
November 2020, overturned the judgment that had been used to justify the UP ordinance.16 The
constitutional validity of the ordinance and the Uttarakhand Act were also challenged before
the Apex Court in January 2021, wherein the bench headed by the CJI agreed to examine the
laws regulating religious conversions due to inter-faith marriages but refused to stay these
controversial provisions. Later in February 2021, the Supreme Court agreed to hear Jamiat
Ulama-i-Hind after it submitted that the criminalization of religious conversions through
marriage had become a source of harassment for Muslim youth. The petition was also allowed
to be amended to include the Himachal Pradesh and Madhya Pradesh laws.17
WAY AHEAD
India, being a free & democratic country, the individuals who have attained the age of majority
have the right to choose their partner, and the administration/police authorities must ensure that
individuals that undergo inter-caste or inter-religious marriage are not harassed or subjected to
threats or acts of violence.18 Such freedom of choice in marriage is an inherent aspect of Article
21 of the Constitution.19 To promote heterogeneity, to ensure the protection, and to prevent
the infringement of fundamental rights the legislature ought to address the complexities created
by the SMA. The parties looking for ‘safer’ means to solemnize their marriages are opting for
conversions. However, with the anti-conversion laws coming in, interfaith couples are likely
to suffer. Therefore, the way ahead for the government is to amend the SMA to counter the
‘love jihad’ propaganda.
14
The Hindu, 54 arrested in U.P. under unlawful conversion ordinance so far, 54 arrested in U.P. under
unlawful conversion ordinance so far - The Hindu
15
BBC News, 'Love jihad': What a reported miscarriage says about India's anti-conversion law, 'Love jihad':
What a reported miscarriage says about India's anti-conversion law - BBC News
16
Salamat Ansari v. State of UP, Crl. [Mis. Writ Petition No.11367 of 2020]
17
The Hindu, Supreme Court to hear Jamiat on religious conversion laws,
https://www.thehindu.com/news/national/sc-allows-hp-mp-to-be-made-parties-to-plea-against-laws-on-
conversion-due-to-interfaith-marriage/article33858908.ece
18
Lata singh v. State of Uttar Pradesh, AIR 2006 SC 2522.
19
In Re: Indian Woman says gang-raped on orders ofVillage Court published in Business & Financial
Newsdated (2014); Shakti Vahini v. Union of India (2018) 7 SCC 192
