Marriage and the law (Inter-faith): India

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Judiciary on Inter-faith marriages

Marriage with Muslim: India

Bride must convert to Islam: HC

‘Bride must convert to marry Muslim’

Failure To Do So Will Void Marriage: HC

R N Pandey | TNN

From the archives of The Times of India 2007, 2009

Allahabad: In a judgment with far-reaching implications, the Allahabad high court has ruled that a non-Muslim bride must convert to Islam to marry a Muslim. Failing that, the matrimony with a Muslim man would be void as it would contradict Islamic dicta and tenets of the Quran, the court said.

The ruling by a division bench comprising Justices Vinod Prasad and Rajesh Chandra, came on a writ petition filed by Dilbar Habib Siddiqui. The petitioner had sought quashing of an FIR registered against him on March 17 under sections 323, 366 and 363 of IPC with Naini PS, Allahabad and prayed the court not interfere in his peaceful matrimonial life with Khushboo Jaiswal. The judges directed a speedy probe into the marriage of Siddiqui and ordered the cops to separate Khushboo Jaiswal, who was lodged in Nari Niketan, and hand her over to her parents.

The primary question for adjudication was on whether the FIR could be quashed or not. A perusal of the contents of the FIR indicated that Khushboo Jaiswal was alleged to have been abducted by the petitioner three months prior to its lodging. However, the petitioner had succeeded in preventing the FIR from being registered. The FIR was filed by the girl’s mother, Sunita Jaiswal, who alleged that the petitioner had abducted her daughter.

She contended that Khushboo never converted to Islam and there was also no documentary evidence to suggest so. ‘‘In our above conclusion we are fortified by the fact that in the affidavit filed by Khusboo herself subsequent to her alleged contract marriage, she has described herself as Khushboo and not by any Islamic name. As Khushboo, she could not have contracted marriage according to Muslim customs. In those documents she has addressed herself as Khushboo Jaiswal,’’ the verdict said.

‘‘Thus, what is conspicuously clear is that Khushboo Jaiswal never converted and embraced Islam and therefore her marital tie with the petitioner Dilbar Habib Siddiqui is a void marriage since the same is contrary to Islamic dicta and tenets of Holy Quran,’’ the court ruled.

Marrying person of choice fundamental right

Karnataka HC/ 2020

December 2, 2020: The Times of India

BENGALURU: The Karnataka high court has said it was well settled that the “right of any major individual to marry the person of his/her choice is a fundamental right enshrined in the Constitution of India”, echoing earlier observations by the Allahabad and Delhi high courts upholding the right to marry a person of one’s own choice.

The Karnataka HC division bench comprising Justices S Sujatha Sachin Shankar Magadum, which was dealing with a case involving two software professionals on November 27, added that “the said liberty relating to the personal relationships of two individuals cannot be encroached by anybody irrespective of caste or religion”.

The observations came while disposing of a habeas corpus petition filed by HB Wajeed Khan, a software engineer and resident of Bengaluru, who had approached the court seeking directions to produce Ramya G, a software engineer and colleague, and set her at liberty.

Acting on the court’s directions, Chandra Layout police produced Ramya before the court on November 27. Her parents, Gangadhar and Girija, as well as Wajeed Khan and his mother, Sreelakshmi, were present.

Ramya told the court she was staying at NGO Mahila Dakshatha Samithi, Vidyaranyapura, following a complaint lodged by her with the Janodaya Santwana Kendra, a family dispute resolution forum set up by the department of women and child welfare development. Ramya had alleged that her parents were infringing on her right to liberty by opposing her marriage to Wajeed.

Wajeed’s mother Sreelakshmi said she had no objection to the marriage but Ramya’s parents had not consented. Recording the statements, the bench noted that the scope of a habeas corpus petition was limited to producing the alleged detenue before the court.

“Ramya G, being a software engineer, is capable of taking a decision regarding her life. The Mahila Dakshata Samithi is directed to release her forthwith,” the bench observed.

Allahabad HC: 2021

Rajesh Kumar Pandey, Sep 17, 2021: The Times of India

Observing that adults have the right to choose their life partner irrespective of the religion professed by them, the Allahabad high court on Thursday granted protection to an interfaith couple from Gorakhpur. In such a case, not even their parents could object to the relationship, the court said.

The court granted protection to the couple and directed the police to ensure that the petitioners were not subjected to any harassment by the father of the girl or by any other person in connection with their relationship with each other.

Hearing a petition jointly filed by Shifa Hasan and her Hindu partner, a division bench comprising justice Manoj Kumar Gupta and justice Deepak Verma observed, “As the present petition is a joint one by the two individuals who claim to be in love with each other and are major, therefore, in our considered opinion, nobody, not even their parents, could object to their relationship.”

Special Marriages Act (SMA)

30-day notice period a hurdle

Himanshi Dhawan, February 11, 2018: The Times of India

How a law is coming in the way of love marriages

A week after they eloped, X and Y ran out of money. They had given Rs 15,000 to a lawyer to get married quickly but he had cheated them. They had not eaten in four days. Desperate and scared, the two needed to escape Rajasthan before their families caught up with them. X, a Muslim, thought it was safer to come to Delhi with his Hindu brideto-be and opt for a religious wedding even though they didn’t want to convert.

Ironically, the Special Marriages Act (SMA), a law meant to facilitate inter-faith and intercaste marriages, has become a hurdle for couples as it mandates a 30-day notice period before the marriage is solemnised. During that time, the administration puts out a notice to inform the public of the marriage, with the full name and address of the couple, sometimes even a picture, and also sends a notice to the address of the two people intending to marry.

In a city like Delhi, a public notice may not elicit much reaction, but in smaller towns with close-knit communities it can be a red flag. “Putting up a notice at the district administration office or sending a notice to the person’s home makes couples vulnerable to vigilante groups, busybodies or just people who think they mean well,’’ says Vikas Tiwari, a Delhi-based lawyer. For instance, if there is a notice about a “Sharma’’ girl marrying a Muslim boy, even the office clerks and peons take it upon themselves to call up the family acting as “well-wishers’’ while vigilante groups decide to visit the family to intimidate them.

“If the Supreme Court has recognised live-in relationships and there is no bar on that, why do two consenting adults need to announce their intention to marry and take permission from society? It is completely absurd,” Tiwari says, adding that the notice period should be shortened. In case either of the adults is cheating (is already married) or of unsound mind or guilty of any violations, there are provisions in law to deal with such situations, he points out.

Asif Iqbal, co-founder of Dhanak, a support group for inter-faith couples, has seen many couples succumb to pressure and opt for a religious marriage because they fear being caught and separated.

In Delhi, he says, after the application for SMA has been put online the waiting period is close to 40-45 days, aggravating problems for a fleeing couple. “In comparison, if a couple gets either a nikah or an Arya Samaj wedding, they can be married and have it registered within a day. In a way you are forcing people to convert when there is no real desire to,” Iqbal says.

Tiwari says that getting protection is also a cumbersome process as in most states couples have to approach the high court, which is both expensive and time-consuming. Desperation also makes them easy prey for touts and middlemen who may charge between Rs 50,000 and Rs 1 lakh for a quick-fix wedding.

30-day notice violative of privacy: SC/ 2023

Dhananjay Mahapatra, April 21, 2023: The Times of India

New Delhi: As it doubles down on adjudicating the demand for recognition of same-sex marriage by bringing it under the Special Marriage Act, the Supreme Court on Thursday segued into the constitutionali ty of the mandatory requirement of 30-day notice period under the SM Act and called it “patriarchal”, violative of privacy and a safety risk for couples availing it.

A bench of CJI D Y Chandra chud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha appeared to agree with the petitioners who said the 30-day notice required under the SM Act, 1954, was a disproporti onately restrictive condition that invaded the privacy of couples intending to marry by compelling them to reveal who their partner was — a compulsion which exposed them to retribution fr om parents and relatives opposed to the marriage.

“This (the mandatory 30-day notice) will disproportionately affect one of the spouses, either belonging to a marginalised community, or a minority. So, i t has a disproportionate impact on those who are the most vulnerable segments of our society,” CJI Chandrachud said. “The 30-day notice requirement is based on patriarchy and the law was made with this provision when women did not have agency,” Justice Bhat added.

The judges’ remarks endorsed the submissions of the petitioners’ counsel, senior advocates Raju Ramachandran and A M Singhvi, who said this colonial-era law was replete with patriarchy as it compelled a couple, who had chosen each other as life partners exercising their constitutionally guaranteed decisional autonomy, to reveal to the entire world whom they wanted to marry and when.

Ramachandran said the SC had in its 2018 judgme nt in ‘Shakti Vahini’ case laid down elaborate preventive, punitive and r emedial guidelines for the state to protect heterosexual couples against violence from parents, relatives and khap panchayats. The same guidelines should be extended to same-sex couples if the SC agrees to give marriage rights to them, he said.

Earlier in the day, Singhvi argued that rape laws may not apply to homosexual couples. The CJI asked, “Why can’t rape laws apply to a homosexual couple?” Justice Kaul joined in and said, “If in a heterosexual relationship, there is a possibility of reading rape into it, how can it be not read into homosexual relationship? The same principle must apply. All laws which apply to heterosexual couples must apply to same-sex couples. ”

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