Introduction:
In the last few months Government and Courts brought a drastic change in the right to marry to a person of choice. It can be seen that, on the one hand, the Government is narrowing the broad sense of rights while on other hand Indian Judiciary is in full power to maintain the wide application of such laws.
Prestigious Courts remain their supremacy in every aspect of social-political changes but sometimes government authorities’ voices appear to be clouded by their political ambitions and affiliation.
This causes great damage to rapidly changing society and makes a negative influence on its people.
An adult individual’s right to marry a person of his or her choice is a fundamental right enshrined in the Indian Constitution and can not be encroached by anybody irrespective of caste or religion.
The right to marry a person of choice is a matter of personal liberty and comes under Article 21[1] of the Indian Constitution. In this article, we will be talking about the scope of the article, the vision of B.R Ambedkar for Article 21, the present interpretation, and the important judgments of the High Courts and Supreme Court.
What constitutes this right?
Not just freedom of religion[2] Indian Constitution guarantees Indians the right to eat, dress, and love as they wish according to their comfort. And this is the duty of the Judiciary to protect these liberties. The right to marry a person of choice comes under the right to life integral to Article 21. This right cannot be taken away, except through a law that is substantively and procedurally fair, just, and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to make decisions on matters central to the pursuit of happiness.
Social values and morals have their space but they are not above constitutional rights. Freedom of faith is necessary as it strengthens the core of the constitution.
Govt. Ordinances and Right to Personal Liberty (Article 21)
“No one shall be deprived of his life or liberty except according to procedure established by law”.But nowadays various state government ordinances infringe individuals right to marry a person of choice under Article 21. This article is the most interpreted Article of the constitution. The list goes as-:
- UP government ordinance criminalizing Religious Conversion (Love jihad)[3]. And makes it a non-bailable and non-cognizable offense. The ordinance leads to an unreasonable intrusion into the domain of personal autonomy and furthers communal stereotypes. Many problematic provisions of the ordinance treats religious conversion as unlawful unless certified by the state.
- Madhya Pradesh government to introduce the Love-Jihad bill with 5 years of imprisonment. According to the government that will make it necessary to inform the district collector a month in advance before finalizing an interfaith marriage.
- Karnataka Chief Minister BS Yeddyurappa also said that his government would measure to end religious conversion and make laws against “Love Jihad”, even though the right to marry a person of one’s choice is guaranteed under Article 21.
- Reportedly, the Haryana government is also considering legal provisions against “Love jihad”. Trying to break up Hindu-Muslim marriages and make them null and void.
Until now “Love Jihad” was not a recognized term under the Indian Legal System. It was coined by Sangh Parivar to describe an imaginary Muslim Conspiracy to convert unsuspecting Hindu women to Islam.
These governments are infringing one’s liberty enshrined in Article 21. Marriage should be based on the consent of the two sexes. Society and government should not interfere with the decision of two adult individuals.
Constitution Maker’s Vision
Dr Ambedkar had said that in a society that is torn asunder, marriage as a binding force becomes a matter of urgent necessity. The virulent times of today, thus, necessitate inter-caste and inter-faith marriage. Dr. B. R. Ambedkar, in his seminal essay “Annihilation of Caste”[4], prescribed inter-caste marriage as the real remedy for the abolition of caste. Fusion of blood, he said, could alone create the feeling of being kith and kin and unless this feeling of kinship became paramount, the separatist feeling created by caste would not vanish.
While the law needs to play an enabling role in facilitating interfaith marriages. It is time and society blessed these marriages unequivocally and heralded a change that this country critically needs. Let secularism not be a mere part of constitutional ideals; a plural heterogeneous and tolerant India demands secularism from every citizen.
Previous Judgements and its Impact
Above mentioned ordinances assume a ‘tone-deaf’ position to the various judgments of the Supreme Court having a wide sense of personal liberty. Like Shefin Jahan case and Salamat Ansari case.
Wajid Khan and Ramya[5]
Recently, the Allahabad court further ruled that every young man and woman has the right to choose their spouse according to their choice.
Salamat Ansari and Priyanka Kharwar Case[6]
The Allahabad High Court canceled a case filed against a Muslim man, Salamat Ansari, filed by the parents of his wife, Priyanka Kharwar. Priyanka Kharwar had converted to Islam last year to marry Salamat Ansari. The Allahabad High Court also said that it does not see Priyanka and Salamat as Hindu-Muslim but rather as two grown-up individuals.
Shafina Jehan[7]
The Court assessed the allegation that Hadiya was deceived into marrying her husband Mr. Shafin Jahan and forcibly converted to Islam. The Court found that the allegation, which was made by her parents, was false.
GOVERNMENT LOVE JIHAD RULE MILITATES AGAINST RIGHT TO PRIVACY, PERSONAL LIBERTY AND MARRY TO A PERSON OF CHOICE.
Lata Singh v. State of U.P And Another[8]
It isa landmark case in which the Supreme Court provided unwavering support of a woman’s right to choose. She left her house and married Brahma Nanda Gupta, out of her caste.
Valsamma Paul vs. Cochin University & Ors.
The learned single Judge (Supreme Court Of India) and the Division Bench proceed solely based on Canon Law and the acceptance in the community on marriage and constitutional mandate is overlooked.
Conclusion
Bridging the chasm between the wide perspective of the courts and the mindset of common people. It has been often seen that people hardly accept the broad concepts like inter-caste marriage, inter-faith marriage, marriages without the consent of parents, and court marriages. Being well aware of the laws, people treat such couples with derogation when they come to know that another person is involved in any of these activities. A couple has to go through extreme criticism, hatred, and disparagement. Only making laws, giving verdicts, and separating lawful from unlawful would not ameliorate the situation. Courts must make sure that their judgment helps citizens to think broadly and wisely.
Further, the Indian Judiciary and Legislative authorities should protect such couples from any kind of coercion (mental or physical), unauthorized intervention, and communal hatred.
Indian society desperately needs to reform widely. The essence of the Indian Constitution lies in the acceptance of cultural diversity and pluralism.
References:
[1] “Article 21 in The Constitution Of India 1949 – Indian Kanoon.” https://indiankanoon.org/doc/1199182/. Accessed 11 Jan. 2021.
[2] “Freedom of Religion Under Indian Constitution: Whether ….” http://www.legalserviceindia.com/legal/article-731-freedom-of-religion-under-indian-constitution-whether-freedom-of-religion-or-freedom-from-religion.html. Accessed 11 Jan. 2021.
[3] “UP Ordinance Criminalizing Religious Conversion By ….” 29 Nov. 2020, https://www.livelaw.in/columns/up-ordinance-criminalizing-conversion-for-marriage-is-an-assault-on-personal-liberty-166575. Accessed 11 Jan. 2021.
[4] “Annihilation of Caste by Dr.B.R.Ambedkar – Review.” https://www.sociologygroup.com/annihilation-caste-book-review-arundhati-ambedkar/. Accessed 11 Jan. 2021.
[5] “Karnataka High Court orders, ‘Marriage with choice is ….” 2 Dec. 2020, https://www.magzter.com/news/1060/3324/122020/3s23r. Accessed 12 Jan. 2021.
[6] “Priyanka Kharwar, Salamat Ansari not Hindu-Muslim for us ….” 24 Nov. 2020, https://www.indiatoday.in/india/story/priyanka-kharwar-salamat-ansari-not-hindu-muslim-for-us-says-allahabad-high-court-cancels-case-against-man-1743644-2020-11-24. Accessed 12 Jan. 2021.
[7] “Hadiya Marriage Case – Supreme Court Observer.” https://www.scobserver.in/court-case/hadiya-marriage-case. Accessed 12 Jan. 2021.
[8] “Lata Singh Vs State of U.P | India Judgments | Law | CaseMine.” https://www.casemine.com/search/in?q=Lata+Singh+Vs+State+of+U.P. Accessed 12 Jan. 2021.
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