The Gujarat High Court Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav has passed an interim order ruling that the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021, will not apply to inter-faith marriages that take place without force, allurement or fraudulent means.
The Chief Justice Vikram Nath announced in open court, “After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because the marriage is solemnised by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.”
Section 3 prohibits forcible conversion from one religion to another by use of force or by allurement or by fraudulent means, or by aiding a person to get married by allurement or by fraudulent means. Section 4, 4A to 4C prescribes punishment of imprisonment for unlawful conversion, declares marriages by unlawful conversion as void, and also deals with offences of organisations doing unlawful conversion. Section 5 penalises persons who have abetted the crime of forceful conversion and section 6 places the burden of proof on the accused.
The Chief Justice added, “The above interim order is provided only on the lines of arguments made by the learned Advocate General Mr. Trivedi and to protect the parties solemnising their inter-faith marriage from being unnecessarily harassed.”
After passing the interim order, Advocate General Kamal Trivedi, appearing for the State, requested the Bench to clarify their position in circumstances where an interfaith marriage does result in forceful conversion and to state that the sections should then apply.
To this, the Chief Justice said, “You have to have a basic argument that its forceful conversion, either there is force or allurement….that’s all that we have said!” The court clarified that something “basic” has to be there to show that there is force or fraud or allurement in the inter-faith marriage. In the absence of this, the amended law would not apply.
On August 17, the government had argued that interfaith marriage is not prohibited under the Gujarat Freedom of Religion (Amendment) Act, 2021, however, using it as a tool or instrument for effecting forceful conversion is not allowed. The original Act of 2003 prohibited conversion by force or allurement, however the 2021 amendment makes “conversion by marriage” an offence which is one of the many common threads between the anti-conversion laws passed in Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh as well.
In August, the Gujarat Freedom of Religion (Amendment) Act, 2021 was challenged before the court and a notice was issued to the government of Gujarat by the Bench. (Jamiat Ulama-E-Hind Gujarat vs State of Gujarat, R/SCA/10304 of 2021). During the hearing held on August 5, the bench had also orally expressed its displeasure over the changes brought about in the law. It had orally remarked, “Either you say if there is marriage by force or fraudulent means and then there is conversion, then of course, it is not right, fair enough. But if you say only because of marriage, someone converts and so it is an offence (it is not correct).”
The Bench had opined that if an inter-religious marriage is without coercion or fraudulent means then it should not be treated as an offence. State counsel Manisha Luvkumar contended that the object of the Act is to check relationships wherein one says that the marriage will not take place unless the spouse converts. To this, Chief Justice Vikram Nath had reportedly responded, “It is between the two individuals”.
In related news, Citizens for Justice and Peace (CJP), SabrangIndia’s sister organisation, has also approached the Supreme Court challenging the anti-conversion laws passed by the governments of Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh citing issues like privacy, dignity and autonomy of women, equality and secularism.
The complete order may be read here:
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