IDEAS to deal with change of Religion of girls during marriage

  • By Rajesh Gehani
  • November 3 2020
  • @rrgehani
  • 4033 views
  • The Allahabad High Court recently dismissed the petition of a girl, who converted to Hinduism to marry her love, to direct the police to prevent her father from interfering in her married life. 
  • Ideas for law-makers to prevent girls from being trapped and forcibly converted.

There have been instances of a number of Hindu girls marrying Muslim boys, elope-forcibly and voluntary. 

 

Sometimes when children marry against parent wishes, the parent mostly of the girl approach courts.

 

Last week I wrote, What every Hindu Girl marrying a Muslim should know and now this Allahabad High Court order, the gist of which is that change of religion for the sake of Marriage is not valid in case of a Muslim girl who became Hindu.

 

What are the facts of the case before the Allahabad High Court?

An interfaith Couple, Muslim woman and a Hindu man approached the Allahabad High Court vide a Writ Petition seeking a direction to the police and the girl’s father not to interfere with their peaceful married life by adopting coercive or other measures.

 

Actually the issue before the Court was not validity of the wedding but they were seeking only an order to the Police for grant of protection to the couple from interference by girl’s father.

 

In this case the girl, a Muslim by birth changed her religion to Hindu on 29.6.2020. The couple had solemnized their marriage according to Hindu rites and rituals on 31.7.2020.

 

Court observed that -

The girl had changed her religion one month before the wedding, it being done purely for the sake of marriage.

 

The Court did not deem their marriage to be invalid but rejected their prayer for protection with certain directions.

 

Court decision -

The Court dismissed the said Writ Petition based upon the observations made in the earlier matter of Noor Jahan Begum, wherein the Court, while dealing with 4 separate instances of conversion of religion of Hindu girls at the instance of Muslim boys, held that their conversion to Islam without any knowledge of Islam or faith and belief in Islam only for the purpose of Marriage (Nikah) was invalid.

 

Thus, what happened to the rights of girl’s w.r.t divorce and inheritance since their conversion to Islam was deemed invalid. For answers do read my earlier article What every Hindu Girl marrying a Muslim should know, Marriage Laws in India

 

In the earlier matter of Noor Jahan Begum (decided on 16.12.2014), it was held that change of religion of a non-Muslim (meaning Hindu) without any belief in Islam and only for marriage is void.

 

In Mohammed Salim and Ors. Vs. Respondent Shamsudeen and Ors in Civil Appeal of 2013 (decided on 22.01.2019), it was held that the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage and that a child born out of such wedlock (fasid marriage) would be entitled to claim a share in his father's property. Since the woman had not converted to Islam, she would not be entitled to inherit the property of her husband as per the Mohemmedan Law.

 

Now, what is the effect of these court orders on Hindu girls who convert to Islam as i.e. the pre-condition for having a Nikaah or a Muslim wedding!

 

Conversion for the purpose of marriage is invalid. Thus, girls continue to be non-Muslims, the marriage is not valid and there is no marriage at all in the eyes of law. In effect, this means that a marriage of a Hindu girl with a Muslim man can never be valid.

 

At the same time, there are increasing number of cases where Hindu girls are forcibly being made to convert to Islam before Nikah (Nikita Tomar case for example based on media reports). The state governments are planning to pass laws to curb love jihad as such forced marriages are popularly called. Here are some suggestions for kind consideration.

 

Suggestions

In view of these court judgements it is high time that the appropriate Government passes appropriate laws to protect the rights of girls.

1. One way is to legislate that all interfaith marriages must be under Special Marriages Act only and not personal law of either partner. This way the rights of the girl are protected. Inheritance and Divorce laws might have to be simultaneously amended. To know the benefits of marriage under this Act and women rights thereon read my earlier article here

 

In the recent past, many instances have come to light where Muslim boys have eloped with Hindu girls or presented themselves to the girls as Hindus with Hindu names or as a Bachelor inspite of being married.

Since Muslim men are allowed under law to marry 4 times, Muslim society is probably used to this concept. For a Hindu girl marrying an already married man is not done and is against their society values. How can girls be protected?

 The deeper intent behind a partner retaining their original religion is that conversion is against Indian Culture. A life partner can follow the rituals and traditions of spouse’s religion without converting.

2. Here are some more suggestions.

 

A. When a boy presents himself (name included) as follower of a religion which is not followed by him or his parents, then such a representation shall be deemed to be a criminal act and should be made severely punishable. No exemption from this law shall be provided even to juveniles (those under 18).

 

B. When a boy represents  himself as unmarried but is actually married, then such a misrepresentation shall be also be deemed to be a criminal act and should be made severely punishable.

 

In all cases, a boy cannot claim exemption from punishment because he is a juvenile (under the age of 18). More so, the law of India does not allow someone below the age of 18 to get married in the first place.   

It is imperative on the police and judiciary to set up a fast-track mechanismin in order to complete the case within 2 years from the registering of the F.I.R. (First Information Report). Unless there is fear of law, it shall not act as a deterrent. 

C. All laws, rules, regulations, customs or usages relating to marriage,  inheritance  and matrimonial rights of the parties which are gender discriminatory shall be held to be invalid and inoperative in so far as the same are discriminatory against the women.

 

One must accept that passing of law is only the first step. Unless and until the communities speak up against trapping of women and forcibly changing their religion this problem shall continue. 

 

These are only a few suggestions. I hope these are taken in right spirit and look forward to your suggestions (please post as comment).

 

Author is a lawyer with over 30 year’s experience.  

 

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