High Courts pushing back on anti-’love jihad’ laws but harassment of inter faith couples continues

Several High Courts are pushing back against laws and ordinances against interfaith marriages. The Gujarat High Court this week ordered one such couple to be released, reprimanding the police for showing undue fervour. The husband happened to be a Muslim and the wife a Hindu, both of whom were childhood friends.

While the Supreme Court has refused to stay the ordinances and the laws, the high courts are citing previous Supreme Court judgments to extend protection to couples being harassed by the state. The Uttar Pradesh Government, meanwhile, has approached the Supreme Court with a prayer to transfer all petitions challenging its November ordinance against alleged forcible conversion for marriage, which were being heard by the Allahabad High Court.

The Allahabad High Court on January 12 had struck down the requirement in the Special Marriage Act for giving one month’s public notice. The provision, a couple complained, put them at risk and forced one of them to convert to Hinduism. Although the couple wanted to make use of the SMA, they couldn’t.

The SMA, 1954 allowed interfaith marriages and also enabled couples belonging to the same faith to opt for a secular marriage. Senior Advocate SFA Naqvi arguing before the Allahabad High Court had pointed out that the Special Marriage Act being a central Act, the love jihad laws enacted by the states were violative of the central law and also unconstitutional.

In 2018 the Supreme Court had ruled in the ‘ Shakti Vahini’ case that consent of family or community was not necessary when two adults agree to get married. “When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large,” the court observed.

The high courts have also cited various other rulings of the Supreme Court, including the one which upheld the right to privacy as fundamental. “The right to marry a person of one’s choice is integral to Article 21 of the Constitution,” the court had said.

In one of the orders, Justice Pankaj Naqvi and Justice Vivek Agarwal held, “We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together.”

Ruling on a petition filed by Salamat Ansari, who married Priyanka Kharwar/Alia, the court had said, “We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year”.

In another case Justices Pankaj Naqvi and Vivek Agarwal spoke to a woman named Shikha and verified that she was an adult and had married Salman of her own free will. “She has a choice to live life on her terms and is free to move as per her choice without any restriction... has expressed that she wants to live with her husband... is free to move as per her own choice without any restriction or hindrance being created by (a) third party,” the court said.

In yet another case the Allahabad High Court ruled against any coercive action against one Nadeem from Haridwar. A police case against him was lodged by one Akshay Kumar who alleged that Nadeem was a frequent visitor and wanted to convert and marry his wife, a charge denied by the petitioner. He claimed that he was being framed out of malice because of a payment dispute and because he had intervened during a quarrel Kumar was having with his wife.

Despite the progressive rulings, the laws continue to be misused by Uttar Pradesh Police to harass Muslim men. Although the central government has denied in Parliament having any evidence on ‘Love Jihad’ and despite the NIA in the Hadiya case of Kerala and Uttar Pradesh Police in Kanpur finding no evidence of forcible conversion for marriage, interfaith marriages continue to be targeted.

Though the number of the harassed is still small, the hype is being built up with possibly the assembly election in mind