Love Jihad

When it comes to inter-faith marriages, Indian state is like a super khap panchayat

The Special Marriage Act was meant to facilitate inter-religious marriages. But it actually creates huge hurdles.

Some parts of our political life have hit such a low that the right to marry someone outside one's religion has actually become a live election issue. This right is so basic that even to discuss it seems a waste of time; we might as well debate whether the sun rises in the east.

Nevertheless, the Sangh Parivar has tried to politicise this basic right through a campaign against what it calls "love jihad", a strategy by which Muslim men allegedly feign love for women from other religions in order to convert them to Islam.

From well before riots broke out in Muzaffarnagar in western Uttar Pradesh in September 2013 to Bharatiya Janata Party parliamentarian Yogi Adityanath’s rabble-rousing today, the Sangh Parivar has employed so-called love jihad as a  political strategy. The BJP discussed it at a conclave of its Uttar Pradesh unit in Vrindavan late last month, and although a few leaders expressed reservations, most of them endorsed the campaign enthusiastically.

In the run-up to by-elections in UP on September 13, this campaign is only likely to intensify. The BJP has even appointed Adityanath to lead the campaign, soon after a video of him surfaced promising to convert 100 Muslim girls for every Hindu girl that marries a Muslim.

The legal route

Legally, India has a clear route to inter-religious marriage: the Special Marriage Act, 1954, under which a couple, no matter what their caste or religious background, can marry without any need for conversion.

Just how manufactured the Sangh Parivar's brouhaha is can be seen from the fact that it is not even discussing this Act ‒ the one instrument that clearly separates the issue of conversion and marriage. Yet, this law is exactly what we should be discussing because its provisions show that the biases driving the Sangh Parivar animate the Indian state itself.

Under the British Raj, the only way for an inter-religious union to be solemnised was via Act III of 1872. However, getting married under this act required a public renunciation of one's religion ‒ clearly an unneeded measure but one that was an outcome of the Raj’s policy of not interfering in the personal and religious life of Indians.

Independence saw this policy being challenged, led by the Progressives within the Congress. Nehru as well as Ambedkar put in a tremendous amount of effort to reform and codify Hindu law and bring it in line with their liberal vision of India. Yet interestingly just like the colonial state, they left Muslim personal law untouched.

This vision was opposed by Conservatives both from within the Congress and outside. NC Chatterjee, president of the Hindu Mahasabha (the father of Somnath Chatterjee, who went on to become a Communist), led the charge against this reform.

Conservative opposition

For example, when Nehru's government tried to introduce a clause giving Hindu women the right to divorce, Chatterjee argued that "marriage is regarded as one of the 10 sanskars or sacraments necessary for regeneration of men of the twice-born classes and the only sacrament for women and shudras.  To introduce divorce then was to deny women the chance of rebirth in their karmic cycle."

So bitter was the opposition to reforming Hindu personal law that, battered by the struggle, Ambedkar resigned from Nehru’s cabinet.

Nevertheless, as is well known, Nehru managed to get the Hindu Code Bills passed, partly by using his immense clout and partly by giving some concessions to the Conservatives. One of those concessions, unfortunately, was watering down the Special Marriage Act, which was being debated at around the same time. Parliament wrote enough hurdles into the Act to render it effete as an instrument of social change.

A super khap panchayat

One of the most curious provisions of the Act is that the process requires a notice period, unlike under religious personal laws. Couples who want to marry under the Special Marriage Act have to apply in writing to the marriage officer. The marriage can be conducted only after a month and only if no objections are raised in that time. Moreover, a notification announcing the marriage needs to be displayed at a prominent place by the marriage officer.

Clearly, this provision has no other use other than to intimate the families of the couple getting married as well as other caste or religious leaders, who might oppose such a match. Once the marriage has been announced, not only can anyone raise a simple objection, thus delaying the marriage date indefinitely, the fact that the exact location and date of the marriage is publicly known means that physical force can easily be used to stop the ceremony.

Further, the Act also stipulates that an application for marriage can be made only in a place where at least one of the parties resides. In practice, this means that in India runaway inter-religious marriages are literally not permitted by law.

Furthermore, if either of the parties is not a permanent resident of the place, the Act says that the marriage officer has to inform the court in the district within whose limits that party is a permanent resident. The court must then display a copy of the announcement of the intended marriage at a conspicuous place in its premises.

In effect, what this means is that marriage officers must send a letter to the permanent addresses of the parties, informing them that their son or daughter is about to do the unthinkable: exercise his or her fundamental right to marry someone of his or her choosing.

Special protection to Hindus

In practice, therefore, by making sure that parents as well as caste or community leaders are aware of the time and location of the intended marriage well in advance, the Indian state acts like a super khap panchayat, by making sure that society decides whether the couple should get married or not.

The matter does not end here. Not only does the Act do its utmost to prevent an inter-religious marriage, in the event that it does somehow take place, it also has a punitive provision. If a Hindu (which includes Sikhs, Jains and Buddhists) marries a non-Hindu, he or she cannot inherit ancestral property.

Interestingly, this provision applies only to Hindus; the law does not bother to punish Muslims or Christians in a similar manner. It seems that while the Indian republic hates the idea of an inter-religious marriage in general, one involving a Hindu gives it special heartburn.

Lost opportunity

What is truly tragic in all this is that the Act could theoretically be a bedrock for identity based on the primacy of the individual, one that breaks away from the communal and other group identities that have so bedevilled India. In fact, the Act contains within it the seeds of a robust uniform civil code, given that it is the only provision under which Indians can opt out of their religious personal laws.

Of course, as can be seen from the current, pathetic state of this law, this project was always off to a hobbled start. Nehru's government might have gotten the Act passed but the Conservatives of his time made sure that the law was as good as useless.

Ideally, strengthening the Act would be the way to go in order to build a liberal Indian identity free of narrow parochialism ‒ the Indian state need not differentiate between types of marriages or worry about the fact that Hindus are marrying non-Hindus. However, now that the political heirs of the very same Conservatives who crippled the Special Marriage Act in the first place control the government, the chances of this happening appear dim.

What's more, given that the BJP now directly benefits electorally from making an issue out of inter-religious marriages, you would have to be a bit of a blind Pollyanna to expect it to saw off the branch that it’s sitting on and move towards reforming the Act.

We welcome your comments at letters@scroll.in.
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