The Freedom of Religion Act in Gujarat has been stirring controversies. Till now, there have been at least four complaints using this provision in the already polarised Gujarat. The Act is colloquially referred to as Love Jihad Act in Gujarat.
Amidst the ongoing controversies about the misuse of the Act, the Gujarat High Court today issued a notice to the Gujarat State Government challenging the tenets of the Gujarat Freedom of religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021 observing that it is for the married couple to decide which Religion to follow (in case of inter-religious marriage).
Provisions of a new Gujarat law that penalises forcible or fraudulent religious conversion through marriage have been challenged in the state High Court.
The Gujarat Freedom of Religion (Amendment) Act, 2021, was notified in the state on June 15. Lawyer M T M Hakim represents the petitioner challenging the provisions of the Gujarat Freedom of Religion (Amendment) Act.
Referring to the Gujarat Freedom of religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021 Counsel Mihir Joshi argued that Conversion by marriage or by a person getting married has been made an offence punishable by law. Interestingly, he commented that this act is essentially taking away the choice of two adults from different religions to get married. Marriage is not illegal in itself, which has been made an offence.” The original Act in Gujarat rightfully prohibited forcible conversions but this amended Act could be missed by a sparring couple at any point of time in their marriage since the Act essentially also prohibits aiding an inter-religious couple to marry besides giving them rights to sue each other under the Act. There is a fear of this Act being misused. There have been cases where after filing complaints under pressure from family members, couples have expressed their desire to be together claiming that they were forced to complain.
In the court proceedings today, the bench of Chief Justice Vikram Nath and Justice Biren Vaishnav orally remarked, “Either you say if there is marriage by force or fraudulent means & then there is conversion, then, of course, it is not right, fair enough…But if you say only because of marriage, someone converts & so it is an offence (it isn’t correct)”
To this, State Counsel Manisha Lavkumar answered that “if the lure of marriage is the only means based on which there is conversion…”.
“We can clarify that if there is an inter-religion marriage, without there being any coercion, or any fraudulent means or any allurement then at least that should not be treated as an offence…the moment someone lodges FIR, the person goes to jail” the Chief Justice orally remarked.
To this, State Counsel Manisha Luvkumar said, “The object of the Act is to see that in a relationship, to say that unless you convert there will be no marriage and therefore, marriage if you want, you need to convert…That is what is sought to be addressed”
To this, CJ Vikram Nath said: “But it is between two individuals.”
To this State Counsel, Manisha Lavkumar said: “Very honestly, at this stage, I have not examined the Act in totality. Please issue notice. I haven’t examined the Acti in-totality, and thus, I am unable to assist the Court.”
Justice Vaishnav remarked that “No if someone gets married, you sent him to Jail then the State will satisfy itself that the marriage wasn’t by force?.”
“Per see an inter-religion marriage, it can’t be an offence. Per se marriage doesn’t require the conversion,” submitted the State Counsel.
“But, it is for the married couple to decide which religion to follow,” remarked the Court.
The next hearing of the matter will take place on August 17. Chief Justice Vikram Nath also remarked that “If the state takes any action/sends to jail any person in case of inter-religion marriage, you come to us we will protect you.” Notice has been issued to the Gujarat Advocate General Kamal Trivedi also since the State Act has been challenged.
