How Indian law is trying to make it impossible for interfaith couples to marry

A February 8 video of a Muslim man being beaten up by members of Hindutva groups in a Bhopal court for attempting to register his marriage to a Hindu woman went viral. The Bhopal police later arrested the man under Madhya Pradesh’s anti-conversion law. But his assailants were not arrested or even booked.

Even as the man was arrested for allegedly trying to convert his partner to Islam, the police confirmed that the couple was seeking to register their marriage under the Special Marriage Act, 1954, which enables interfaith marriages.

On February 4, the Bharatiya Janata Party-ruled Rajasthan government tabled a bill modelled after Madhya Pradesh’s anti-conversion law. If enacted, this would be the ninth such law passed by a BJP-ruled state since 2017 that makes it difficult to marry after changing one’s religion. Soon after, on February 14, the BJP government in Maharashtra announced the setting up of a panel to recommend similar legislation.

These developments encapsulate how it has become almost impossible in several states of India today for an interfaith couple to marry.

There are two avenues available to interfaith couples: either both retain their religion and marry under the Special Marriage Act, or one of them converts to the other’s religion and then marry under the personal law of that religion. Over the last few years, both routes have been virtually cut off for interfaith couples in many states, especially if the man is Muslim and the woman Hindu.

When they attempt to register under the Special Marriage Act, such couples are pressured or threatened against doing so. Besides, the anti-conversion laws being passed in BJP-ruled states view marriages in which one partner has converted to the other’s religion through the prism of criminality. The interfaith couple is made to jump through hoops to prove that the conversion was not coerced or illegally induced, especially if it involves the woman having converted to Islam.

Special Marriage Act

Traditionally, marriage could only be performed through personal laws governing each religion. This meant that interfaith couples could not marry unless one of them converted to the other religion. In 1872, the British enacted India’s first inter-faith marriage law. However, this law required each partner to renounce their religion.

This law was replaced by independent India in 1954 with the Special Marriage Act. This allowed persons from any religion to marry without either of them having to give up their faith. However, there is a catch: the 1954 law requires the couple to give a 30-day notice before their marriage. This notice is put up in the office of the marriage registrar for public viewing, in order to invite objections, if any, to the marriage. This contains personal details of the couple: their names, addresses, age, occupation and photos.

The debate in Parliament before the law was passed indicates that the rationale behind the 30-day notice was to prevent “runaway couples” from marrying without “parties who are really interested in the marriage” being informed. In other words, this requirement was to ensure that couples could not marry without the approval of their families. Elopement was not an option under the Special Marriage Act.

In this, the law reflects strong social mores around endogamy in India. A survey of nearly 30,000 Indians from 2019-’20 found that 66% of Hindus and 80% of Muslims said they want to stop women from their communities from marrying into other religious groups. Over 90% of all marriages in India are estimated to be arranged by the family members of the couple, as per a 2018 survey.

Only 5% of the respondents in this survey stated that someone in their family had married outside their religion.

Notice requirement

Legal experts have criticised the 30-day notice period requirement for violating the fundamental right to privacy of couples marrying under the act. It makes the process of registering their marriage “more public, time-consuming and onerous for the intending couple”, according to one critic.

The notice period requirement was challenged before the Supreme Court in 2020. However, the apex court dismissed the petition on technical grounds. In 2023, judges on a Constitution bench of the Supreme Court hearing petitions demanding marital rights for queer people had also critiqued the notice period under the Special Marriage Act. They said that it invaded the privacy of couples, especially those belonging to minorities and other marginalised groups.

These criticisms by experts and the Supreme Court have been borne by the experience of several couples attempting to marry under the act. Especially in the last few years, there has been plenty of reporting from across the country, in BJP as well as non-BJP ruled states, of how the mandatory 30-day notice invites harassment from families and Hindutva groups. Couples face invasive scrutiny and are often forced to abandon their plans to marry.

For example, the interfaith couple targeted in Bhopal was identified due to the SMA notice. The Indian Express reported that Hindutva-leaning advocates had “kept a watch” on the couple before “finally track[ing]” them on the day of the incident.

In 2018, Scroll had reported that Hindutva vigilante groups have formed networks in courts that scan the marriage registrar’s office for notices of interfaith couples intending to marry.

In the courts

This scope for interference in marriages due to the notice requirement was recognised by the Allahabad High Court. In 2021, it held that publishing a notice before a couple decides to marry under the Special Marriage Act is no longer mandatory. The court observed that these rules went against fundamental rights and infringed upon one’s ability to choose to marry without intervention.

However, the court’s verdict has had no visible effect on ground, as the 30-day notice period is still followed by government officials registering marriages under the act.

Courts also mirror social prejudicies against individual choice in marriage. In May last year, for example, the Madhya Pradesh High Court erroneously held that a Muslim man and a Hindu woman could not marry under the Special Marriage Act. This was eventually reversed by a two-judge bench of the High Court in December, which clarified that there was no such bar on such marriage under the act.

Barring conversion

With the doors of the Special Marriage Act increasingly being shut for interfaith couples, the other option they have is for one of them to convert into the other’s religion and marry as per that religion’s personal laws.

However, BJP-ruled states have begun a crackdown on such marriages by passing draconion anti-conversion laws. If made into law, the Rajasthan anti-conversion bill would join a series of similar laws passed recently in other states: Jharkhand in 2017, Uttarakhand in 2018, Himachal Pradesh in 2019, Uttar Pradesh in 2020, Gujarat and Madhya Pradesh in 2021 as well as Haryana and Karnataka in 2022. These laws are popularly known as “love jihad laws” – taking from the Hindutva conspiracy theory that accuses Muslim men of involving Hindu women in romantic relationships in order to convert them to Islam.

The core structure and language of the key provisions of these laws are almost identical. These laws broadly declare as invalid marriages performed after conversion of one of the spouses through vaguely defines factors such as coercion, “allurement”, “undue influence” or fraudulent means.

Moreover, most of these laws place the burden of proof on the accused to demonstrate that their spouse’s consent for conversion was not obtained illegally. That is, the default assumption under these laws is that marriages through conversion are illegal and non-consensual.

These laws allow any family member of a supposed victim of forced conversion by marriage to register a first information report under the act. All offences under the acts are non-bailable.

Converted persons must send a declaration of their conversion to the district magistrate, who then displays the declaration on their office’s noticeboard before confirming the conversion. The declaration, in full public view, consists of personal identifiable details of the converted person. Marriage can only take place once the district magistrate has allowed the conversion. In case it is a Muslim man trying to marry a Hindu woman, this permission would be near impossible.

Onerous requirements

All these elements together make the laws ripe for misuse by authorities and vigilante groups to target and harass minorities and interfaith couples. A mere complaint by the family members of any interfaith couple – usually those of the daughter – under these laws can lead to the spouse – usually the husband – being arrested.

This is illustrated by the ordeal of an interfaith couple in Uttar Pradesh’s Moradabad soon after the state enacted its anti-conversion law.

A Muslim husband of a Hindu woman who had converted to Islam to marry him was arrested in 2020 under the anti-conversion law, according to an NDTV report. The couple had reportedly married under Islamic law a few months prior to the arrest. The woman’s mother had complained to the police, alleging that her daughter was forcibly converted by the man.

When the woman went to register her marriage at the marriage registrar’s office and confirm that she had voluntarily converted, she was heckled by Hindutva activists.

Scroll had reported last year that several interfaith couples that chose to marry after conversion in Uttar Pradesh found it extremely difficult to comply with the onerous requirements of the state’s anti-conversion law to solemnise their marriages. As a result, they were denied protection from violence from their family members by the Allahabad High Court.

Judicial seesaw

The High Court has also denied protection from violence to interfaith unmarried couples by relying on the law, Scroll reported last year. The court’s reasoning – that conversion is required for relationships “in the nature of marriage”, which means live-in relationships, even though there is no such requirement under the law – represented judicial overreach.

Not all courts have regarded interfaith couples with suspicion, though. In 2021, the Gujarat High Court placed an interim stay on provisions of the state’s anti-conversion law that assumed religious conversions for marriage were fraudulent or forced. The court’s rationale: “to protect the parties solemnising marriage inter-faith from being unnecessarily harassed”.

In 2022, the Madhya Pradesh High Court had similarly stayed the provision of the state’s anti-conversion law requiring prior notice to a district magistrate for religious conversion before marriage. The court forbade the state government from prosecuting those who voluntarily convert in order to marry without informing authorities, calling it visibly unconstitutional.

Despite the stays, BJP governments in other states have gone on to pass similar laws. In 2023, the Karnataka law was repealed after BJP lost power to the Congress.